O2188
f:\atty\muni\laws\mjm\g roceryworkers-12d .doc
City Council Meeting 5-25-06 Santa Monica, California
ORDINANCE NUMBER 2188 (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA ADDING CHAPTER 5.40 TO THE SANTA MONICA MUNICIPAL
CODE TO IMPOSE REQUIREMENTS RELATING TO THE RETENTION OF
GROCERY WORKERS IN CERTAIN CIRCUMSTANCES INVOLVING THE
TRANSFER OF OWNERSHIP OF LARGE GROCERY ESTABLISHMENTS
WHEREAS, the supermarket industry in California has experienced radical
change in recent years characterized by transfers of ownership and attendant
displacement of supermarket workers; and
WHEREAS, the upheaval in the supermarket industry poses risks to the safety
and welfare of Santa Monica and its residents; and
WHEREAS, there are at least half a dozen supermarkets operating within the
City of Santa Monica's eight square miles; and
WHEREAS, these supermarkets are this community's principal suppliers of sell
household foodstuffs including fresh produce and other fresh foods which are handled
by the supermarket workers; and
WHEREAS, these supermarkets also sell very large volumes of foods which are
ready to eat upon purchase, including delicatessen foods, baked goods and
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convenience foods; and these foods are prepared and handled by supermarket
workers; and
WHEREAS, inexperienced grocery workers, particularly those hired rapidly in a
time of business transition, may lack the training and experience necessary to follow
proper sanitation and food handling procedures; and
WHEREAS, the City has an interest in protecting the public by adopting policies
which help ensure that workers at markets have the training and experience necessary
to observe food safety standards and employ proper food handling procedures; and
WHEREAS, this interest is intensified by the fact that Los Angeles County has
very limited resources available to protect food safety within the County; and
WHEREAS, one way to avoid a precipitous loss of experienced grocery workers,
and attendant health risks, is to require retention of experienced workers for a period of
time after any change in ownership or control of supermarkets; and
WHEREAS, the City also has an interest in protecting community members
against sudden losses in employment; and
WHEREAS, housing costs are exceptionally high in the City, affordable housing
is in short supply, and families with low and moderate incomes must spend a high
percentage of their income on housing; and
WHEREAS, low and moderate income workers who live in Santa Monica and
suddenly lose their jobs face the risks of also losing their housing and being forced to
relocate outside this community; and
WHEREAS, such sudden relocations adversely impact the community as a
whole, including its schools, churches and other institutions, and also cause particular
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hardships to displaced families which include children, the elderly, the disabled and
people with health problems; and
WHEREAS, imposing a requirement of temporary worker retention will give
workers and their families an opportunity to reo rganize their lives in a way that protects
their own welfare and the welfare of the community to which they belong; and
WHEREAS, the City Council hereby finds that this ordinance is necessary to
promote the public health, safety and welfare,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Chapter 5.40 is hereby added to the Santa Monica Municipal Code
to read as follows:
CHAPTER 5.40.
GROCERY WORKER RETENTION ORDINANCE
Section 5.40.010. Definitions. The following
definitions shall apply to this Chapter:
(a) "City" shall mean the City of Santa Monica.
(b) "Change in Control" shall mean any sale,
assignment, transfer, contribution, or other disposition of all
or substantially all of the assets or a controlling interest
(including by consolidation, merger or reorganization) of the
Incumbent Grocery Employer or any Person who controls
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such Incumbent Grocery Employer ("IGE Parent") or any
Grocery Establishment(s) under the operation or control of
either such Incumbent Grocery Employer or IGE Parent.
(c) "Eligible Grocery Worker" shall mean any
individual whose primary place of employment is at the
Grocery Establishment subject to a Change in Control, and
who has worked for the Incumbent Grocery Employer for at
least six months prior to the execution of the Transfer
Document. "Eligible Grocery Worker" does not include a
managerial, supervisory, or confidential employee.
(d) "Employment Commencement Date" shall mean
the date on which an Eligible Grocery Worker retained by the
Successor Grocery Employer pursuant to this Chapter
commences work for the Successor Grocery Employer in
exchange for benefits and compensation under the terms
and conditions established by the Successor Grocery
Employer and as required by law.
(e) "Grocery Establishment" shall mean a retail store
in the City of Santa Monica that is over 15,000 square feet in
size and that sells primarily household foodstuffs for offsite
consumption, including the sale of fresh produce, meats,
poultry, fish, deli products, dairy products, canned foods, dry
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foods, beverages, baked foods and/or prepared foods.
Other household supplies or other products shall be
secondary to the primary purpose of food sales.
(f) "Incumbent Grocery Employer" shall mean the
Person that owns, controls, and/or operates the Grocery
Establishment prior to the Change in Control.
(g) "Person" shall mean an individual, corporation,
partnership, limited partnership, limited liability partnership,
limited liability company, business trust, estate, trust,
association, joint venture, agency, instrumentality, or any
other legal or commercial entity, whether domestic or
foreig n.
(h) "Retaliatory Action" shall mean the failure to hire,
or the discharge, suspension, demotion, penalization, or
discrimination or any other adverse action against an Eligible
Grocery Employee with respect to the terms and conditions
of the Eligible Grocery Worker's employment.
(i) "Successor Grocery Employer" shall mean the
Person that owns, controls, and/or operates the Grocery
Establishment after the Change in Control.
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0) "Transfer Document" shall mean the purchase
agreement or other document(s) effecting the Change in
Control.
Section 5.40.020. Grocery employers'
responsibilities.
(a) The Incumbent Grocery Employer shall, within
fifteen (15) days after the execution of the Transfer
Document, provide to the Successor Grocery Employer the
name, address, date of hire, and employment occupation
classification of each Eligible Grocery Worker.
(b) The Successor Grocery Employer shall maintain
a preferential hiring list of Eligible Grocery Workers identified
by the Incumbent Grocery Employer as set forth in
subsection (a) of this Section and shall be required to hire
from that list for a period beginning upon the execution of the
Transfer Document and continuing for ninety (90) days after
the Grocery Establishment is fully operational and open to
the public under the Successor Grocery Employer.
(c) If the Successor Grocery Employer extends an
offer of employment to an Eligible Grocery Worker, the
Successor Grocery Employer shall retain written verification
of that offer for no fewer than three (3) years from the date
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the offer was made. The verification shall include the name,
address, date of hire, and employment occupation
classification of each Eligible Grocery Worker.
Section 5.40.030. Transition employment period.
(a) A Successor Grocery Employer shall retain each
Eligible Grocery Worker hired pursuant to this Chapter for no
fewer than ninety (90) days followi ng the Eligible Grocery
Worker's Employment Commencement Date. During this
ninety (90) day transition employment period, Eligible
Grocery Workers shall be employed under the terms and
conditions established by the Successor Grocery Employer,
as required by law and pursuant to the terms of a relevant
collective bargaining agreement, if any.
(b) If within the period established in Section
5.40.020 the Successor Grocery Employer determines that it
requires fewer Eligible Grocery Workers than were required
by the Incumbent Grocery Employer, the Successor Grocery
Employer shall retain Eligible Grocery Workers by seniority
within each job classification to the extent that comparable
job classifications exist or pursuant to the terms of a relevant
collective bargaining agreement, if any. Non-classified
Eligible Grocery Workers shall be retained by seniority and
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according to experience or pursua nt to the terms of a
relevant collective bargaining agreement, if any.
(c) During the ninety (90) day transition employment
period, the Successor Grocery Employer shall not discharge
without cause an Eligible Grocery Workers retained pursuant
to this Chapter.
(d) At the end of the ninety (90) day transition
employment period, the Successor Grocery Employer shall
perform a written performance evaluation for each Eligible
Grocery Workers retained pursuant to this Chapter. If the
Eligible Grocery Worker's performance during the ninety (90)
day transition employment period is satisfactory, the
Successor Grocery Employer shall consider offering the
Eligible Grocery Worker continued employment under the
terms and conditions established by the Successor Grocery
Employer and as required by law. The Successor Grocery
Employer shall retain a record of the written performance
evaluation for a period of no fewer than three years.
Section 5.40.040. Notice to public.
(a) The Incumbent Grocery Employer shall post
public notice of the Change in Control at the location of the
affected Grocery Establishment within five (5) business days
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following the execution of the Transfer Document. Notice
shall remain posted during any closure of the Grocery
Establishment and until the Grocery Establishment is fully
operational and open to the public under the Successor
Grocery Employer.
(b) Notice shall include, but not be limited to, the
name of the Incumbent Grocery Employer and its contact
information, the name of the Successor Grocery Employer
and its contract information, and the effective date of the
Change in Control.
(c) Notice shall be posted in a conspicuous place at
the Grocery Establishment so as to be readily viewed by
Eligible Grocery Workers and other employees, customers,
and members of the public.
Section 5.40.050. Enforcement.
(a) Eligible Grocery Workers may bring an action in
the Superior Court of the State of California, as appropriate,
against the Incumbent Grocery Employer or the Successor
Grocery Employer for violations of this Chapter and may be
awarded:
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(1) Hiring and reinstatement rights pursuant to this
Chapter, whereupon the ninety (90) day transition
employment period shall not commence until the Eligible
Grocery Worker's Employment Commencement Date with
the Successor Grocery Employer.
(2) Front payor back pay for each day during which
the violation continues, which shall be calculated at a rate of
compensation not less than the higher of:
A. The average regular rate of pay received by the
Eligible Grocery Worker during the last three years of the
Eligible Grocery Worker's employment in the same
occupation classification; or
B. The most recent regular rate received by the
Eligible Grocery Worker while employed by either the
Incumbent Grocery Employer or the Successor Grocery
Employer.
(3) Value of the benefits the Eligible Grocery Worker
would have received under the Successor Grocery
Employer's benefit plan.
(b) If the Eligible Grocery Worker is the prevailing
party in any legal action taken pursuant to this Section, the
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court shall award reasonable attorney's fees and costs as
part of the costs recoverable.
Section 5.40.060. Exemption for collective
bargaining agreement.
Parties subject to this Chapter may, by collective
bargaining agreement, provide that the agreement
supersedes the requirements of this Chapter.
Section 5.40.070. Coexistence with other
available relief for specific deprivations of protected
rights.
This Chapter shall not be construed to limit an Eligible
Grocery Worker's right to bring legal action for wrongful
termination.
SECTION 2. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 3. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
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have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
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Approved and adopted this 2Sh day of May, 2006.
~~
Robert T. Holbrook, Mayor
State of California )
County of Los Angeles) ss.
City of Santa Monica )
I, Maria M. Stewart, City Clerk of the City of Santa Monica, do hereby certify that the
foregoing Ordinance No. 2188 (CCS) had its introduction on May 9, 2006, and was
adopted at the Santa Monica City Council meeting held on May 25, 2006, by the
following vote:
Ayes: Council members: Bloom, Genser, Katz, McKeown, O'Connor,
Mayor Pro Tern Shriver, Mayor Holbrook
Noes: Council members: None
Abstain: Council members: None
Absent: Council members: None
ATTEST:
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f I ,({L.t;:L ! (.,,,1Jf:.!/!/a.;:,.. (/(c'} ...
Maria M. Stewart, City Clerk
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