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November 8, 2016 — California General Election
Ballot and voting information for Alameda County.
This is an archive of a past election.

Minimum Wage—City SponsoredOrdinance

Local
November 8, 2016California General Election

City of Berkeley
Measure BB Ordinance - Majority Approval Required

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Election Results

Failed

18,628 votes yes (34.06%)

36,063 votes no (65.94%)

  • 100% of precincts reporting (108/108).

Shall an ordinance: (1) amending the City's existing minimum wage ordinance to increase the minimum wage to $15 per hour for all employees in the City of Berkeley by October 1, 2019, and thereafter by the CPI, with exemptions for youth in job training programs and a $1.50 health benefit credit; (2) requiring that service charges be distributed to the employees who provide the services; and (3) mandating paid sick leave for employees, be adopted?

This Ballot Measure Has Been Superseded

Backers of both BB and CC recommend a NO vote

Impartial analysis / Proposal

This measure was placed on the ballot by the City Council.

This measure would amend Berkeley’s existing minimum wage ordinance (Berkeley Municipal Code Chapter 13.99) in a number of respects.

It would increase the hourly minimum wage as follows:

October 1, 2017 to $13.25 per hour
October 1, 2018 to $14.05 per hour
October 1, 2019 to $15.00 per hour

In addition, beginning in January 2020, the minimum wage would be increased annually by the same percentage as the increase in the consumer price index for the prior year.

The measure would retain existing exemptions for job training participants up to 25 years of age in job training programs operated by nonprofit organizations or governmental agencies, and create an exemption for youth up to 21 years old in job training programs at for-profit employers, but would eliminate the exemption for Welfare- to-Work programs.

This measure would require that hospitality service charges be distributed to the employees performing services for the customers from whom such charges are collected, without any deduction from those employees’ wages.

The measure would allow employers who pay for employee medical benefits to credit up to $1.50 per hour against the minimum wage. The credit would only apply to the minimum wage paid to employees who receive the medical benefit. The credit would be limited to $1.50 per hour even if the medical benefit costs more than that amount.

This measure would eliminate provisions for administrative enforcement proceedings before the City Council, but would retain other City enforcement mechanisms, the existing private right of action and the City’s ability to sue employers for injunctive relief and damages.

This measure would also require employers to provide paid sick leave to all employees at the rate of 1 hour per every 30 hours worked, as of the commencement of employment or the effective date of the measure, whichever is later. Employees would not be allowed to use sick leave until after 90 days of employment with the employer. The total amount of sick leave that could be accrued would be capped annually at 48 hours. Sick leave could be rolled over from year to year, subject to the 48-hour cap. Sick leave could be used for family members, and spouses, domestic partners or other designated persons.

— Zach Cowan, Berkeley City Attorney

Arguments FOR

 

Vote No/No on Measure BB and Measure CC.

On August 31st, after considerable collaboration with a broad spectrum of stakeholders, the Berkeley City Council passed a minimum wage ordinance among the most progressive in the nation. Supporters of both Measure BB and Measure CC came together to develop a consensus solution that will lift up Berkeley’s low-wage workers.

The consensus ordinance does the following:

  •   Raises the minimum wage in Berkeley to $15 per hour by October 1, 2018 with yearly inflation increases after that
  •   Allows workers to earn up to 72 hours of paid sick leave
  •   Provides protections to ensure employees receive the benefit of service charges
  •   Provides for a flexible youth-job-training wage for non-profits

The City Council’s unanimous vote to support this ordinance shows broad community support for increasing the minimum wage and workers rights, and it is a significant victory for low-wage workers.

The City Council passed its ordinance after the deadline for removing the competing measures from the ballot. All parties now agree that the Council ordinance is a good outcome for our city’s low-wage workers, non-profits, and small businesses.

Both the advocates for Measure CC and the supporters of Measure BB ask you to support the City Council’s progressive minimum wage ordinance BY VOTING NO ON BOTH MEASURES BB & CC, thus enabling the Council ordinance to be the governing law.

Join Mayor Tom Bates and the Berkeley City Council, labor advocates, nonprofits, social service agencies and small businesses in allowing the fair and progressive City Council ordinance to prevail. Vote No/No on Measure BB and Measure CC.

—Josie Camacho, Alameda Labor Council AFL-CIO, Executive Secretary-Treasurer
—Kirsten MacDonald, Berkeley Chamber of Commerce, Co-CEO
Laurie Capitelli, Berkeley City Councilmember
—Jesse Arreguin - Berkeley City Councilmember
—David Fielder, Berkeley for Working Families, Co-Chair
 

— Alameda County Registrar of Voters

Arguments AGAINST

 

Vote No/No on Measure BB and Measure CC.

On August 31st, after considerable collaboration with a broad spectrum of stakeholders, the Berkeley City Council passed a minimum wage ordinance among the most progressive in the nation. Supporters of both Measure BB and Measure CC came together to develop a consensus solution that will lift up Berkeley’s low-wage workers.

The consensus ordinance does the following:

  •   Raises the minimum wage in Berkeley to $15 per hour by October 1, 2018 with yearly inflation increases after that
  •   Allows workers to earn up to 72 hours of paid sick leave
  •   Provides protections to ensure employees receive the benefit of service charges
  •   Provides for a flexible youth-job-training wage for non-profits

The City Council’s unanimous vote to support this ordinance shows broad community support for increasing the minimum wage and workers rights, and it is a significant victory for low-wage workers.

The City Council passed its ordinance after the deadline for removing the competing measures from the ballot. All parties now agree that the Council ordinance is a good outcome for our city’s low-wage workers, non-profits, and small businesses.

Both the advocates for Measure CC and the supporters of Measure BB ask you to support the City Council’s progressive minimum wage ordinance BY VOTING NO ON BOTH MEASURES BB & CC, thus enabling the Council ordinance to be the governing law.

Join Mayor Tom Bates and the Berkeley City Council, labor advocates, nonprofits, social service agencies and small businesses in allowing the fair and progressive City Council ordinance to prevail. Vote No/No on Measure BB and Measure CC.

—Josie Camacho, Alameda Labor Council AFL-CIO, Executive Secretary-Treasurer
—Kirsten MacDonald, Berkeley Chamber of Commerce, Co-CEO
—Laurie Capitelli, Berkeley City Councilmember
—Jesse Arreguin, Berkeley City Councilmember
—David Fielder, Berkeley for Working Families, Co-Chair
 

— Alameda County Registrar of Voters

Proposed legislation

AMENDING BERKELEY MUNICIPAL CODE CHAPTER 13.99 TO INCREASE THE BERKELEY MINIMUM WAGE AND ADDING BERKELEY MUNICIPAL CODE CHAPTER 13.100 TO REQUIRE EMPLOYERS TO PROVIDE PAID SICK LEAVE TO EMPLOYEES

The People of the City of Berkeley ordain as follows:

Section 1. The People of the City of Berkeley find and declare as follows:

     A. In regions such as the Bay Area, where the cost of living is extraordinarily higher than the national average, municipalities have adopted local minimum wage standards that are significantly higher than both the federal and state minimum wage requirements.

     B. These local minimum wage mandates are an effort to restore the buying power that the federal minimum wage used to provide and to afford minimum wage standards that more accurately reflect the cost of living in the Bay Area region.

     C. Municipal minimum wages have repeatedly demonstrated themselves to be a highly effective means of combating poverty among working families while stimulating the local economy at the same time, significantly benefitting the community as a whole.

     D. Compared to traditional tipping/gratuity models, service charge models have the distinct advantage of being able to address the often serious inequity in overall compensation between traditional service workers, like bartenders and waitresses (also known as the “front of the house” staff), who receive tips and gratuities and other workers such as cooks and janitors (also known as the “back of the house” staff), who are not legally entitled to participate in tip pools under federal labor law.

     E. However, in the absence of other legal protections that exist for tips/gratuities under state and federal law, replacement of tips/gratuities with service charges may result in employers retaining some or all of the service charges. This in turn would reduce the amount of income available to workers for living expenses.

     F. Accordingly, it is necessary to create clear rules regarding the lawful use of money collected as service charges in order to protect workers by preventing a significant part of their compensation from being retained by employers.

     G. Individuals without paid sick leave are forced to make a choice every time they are ill: stay home to recover or go to work because they cannot afford to work fewer hours. Given this choice, many US workers decide to work while they are sick. As a result, they compromise their health as well as the wellness of those they encounter at work, on transportation systems, and elsewhere in their community.

     H. Paid sick leave provides employees protection against loss of income during absences from work due to illness or injury of an employee or his or her family member.

     I. Workers with paid sick leave have fewer pressures to come to work when they are sick, and are therefore less likely to spread illness to others. This is particularly important among food workers/food handlers, who can potentially spread food to large numbers of patrons; and among childcare providers or in-home care providers, who can potentially infect vulnerable clients—infants and young children, the elderly, and the ill or disabled. Food workers and care providers are among those who frequently work without benefit of paid sick leave.

Section 2. That Berkeley Municipal Code Chapter 13.99 is amended to read as follows:

Chapter 13.99 MINIMUM WAGE

Sections:

13.99.010 Title and Purpose.

13.99.020 Authority.

13.99.030 Definitions.

13.99.040 Minimum Wage.

13.99.050 Waiver Through Collective Bargaining.

13.99.060 Notice, Posting and Payroll Records.

13.99.070 Retaliation Prohibited.

13.99.080 Implementation.

13.99.090 Enforcement.

13.99.100 Relationship to Other Requirements.

13.99.110 Application Of Minimum Wage To Welfare-To-Work Programs.

13.99.120 Fees.

13.99.130 Exemptions.

 

13.99.010 Title and Purpose.

This ordinance shall be known as the "Minimum Wage Ordinance."

The purpose of this ordinance is to protect the public health, safety and welfare. It does this by requiring that employees are compensated by their employers or respective subcontractors in such a manner as to enable and facilitate their individual self-reliance within the City of Berkeley.

13.99.020 Authority.

This Chapter is adopted pursuant to the powers vested in the City of Berkeley under the laws and Constitution of the State of California including but not limited to, the police powers vested in the City pursuant to Article XI, Section 7 of the California Constitution and Section 1205(b) of the California Labor Law.

13.99.030 Definitions.

The following terms shall have the following meanings:
     A. "City" shall mean the City of Berkeley.

     B. "Department" shall mean the Department of Finance or other City department or agency as the City shall by resolution designate.

     C. "Employee" shall mean any person who:
          1. In a calendar week performs at least two (2) hours of work for an Employer within the geographic boundaries of the City; and
          2. Qualifies as an employee entitled to payment of a minimum wage from any employer under the California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders published by the California Industrial Welfare Commission, or is a participant in a Welfare-to-Work Program.

     D. "Employer" shall mean any person, including corporate officers or executives, as defined in Section 18 of the California Labor Code, who directly or indirectly through any other person, including through the services of a temporary employment agency, staffing agency, subcontractor or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee, or any person receiving or holding a business license through Title 9 of the Berkeley Municipal Code.

     E. “Local CPI” shall be the Consumer Price Index for urban wage earners and clerical workers for the San Francisco-Oakland-San Jose CA metropolitan statistical area, as published in by the U.S. Department of Labor, Bureau of Labor Statistics. The prior year's increase in the cost of living shall be measured by the percentage increase, if any, from April 1 of the immediately preceding year to April 1 of the previous year of the Consumer Price Index for urban wage earners and clerical workers for the San Francisco-Oakland- San Jose CA metropolitan statistical area.

     F.E. "Minimum Wage" shall have the meaning set forth in Section 13.99.040 of this Chapter.

     G.F. "Nonprofit Corporation" shall mean a nonprofit corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and (if a foreign corporation) in good standing under the laws of the State of California, which corporation has established and maintains valid nonprofit status under Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated under such Section, or any nonprofit educational organization qualified under Section 23701 (d) of the Revenue and Taxation code.

     H. "Service Charge" shall mean all separately-designated amounts collected from customers by an Employer at a food-service establishment, hotel or other hospitality focused business, that are for service by Employees, or are described in such a way that customers might reasonably believe that the amounts are for those services or in lieu of tips, including but not limited to those charges designated on receipts under the term “service charge,” “delivery charge,” or “porterage charge.”

G. "Welfare-to-Work Program" shall mean the CalWORKS Program, County Adult Assistance Program (CAAP) which includes the Personal Assisted Employment Services (PAES) Program, and General Assistance Program, and any successor programs that are substantially similar to them.

13.99.040 Minimum Wage.

     A. Employers shall pay Employees no less than the Minimum Wage set forth below for each hour worked within the geographic boundaries of the City.

Date

Minimum Hourly Wage

October 1, 2014

$10.00

October 1, 2015

$11.00

October 1, 2016

$12.53

October 1, 2017

$13.25

October 1, 2018

$14.05

October 1, 2019

$15.00

October 1, 2020 and annually thereafter

±Local CPI

     B. For Employers that are Nonprofit Corporations, the requirements of this Chapter shall not take effect until October 1, 2015, at which time the minimum wage will be $11.00 per hour.

     C. A violation for unlawfully failing to pay the Minimum Wage shall be deemed to continue from the date immediately following the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date immediately preceding the date the wages are paid in full.

     D. Cost of Living Adjustment. To prevent inflation from eroding its value, beginning on October 1, 2020, the Minimum Wage shall increase annually each October 1st by the Local CPI.

     E. Distribution of Service Charges

          1. Service Charges shall be used by the Employer to directly benefit the Employees. No part of these charges may be paid to the Employer.

          2. This section does not apply to any tip, gratuity, money, or part of any tip, gratuity, or money that has been voluntarily paid or given to or left for an Employee by customers over and above the actual amount due for services rendered or for goods, food, drink, or articles sold or served to the customer. No part of this chapter shall be construed to limit or prohibit the amount of any tip or gratuity left for an Employee.

          3. No Employer or agent thereof shall deduct any amount from wages due to an Employee on account of a Service Charge or gratuity, or require an Employee to credit the amount, or any part thereof, of a Service Charge or gratuity against and as a part of the wages due to the Employee from the Employer or reduce required benefits of an Employee.

          4. Each Employer shall define the chain of service and associated job duties entitled to a portion of the distributed service charges and notify the Employees of the distribution formula as well as provide in writing to each employee its plan of distribution of service charges to employees.

          5. This Section shall not be applied to any events for which the employer already had a contract in place at the time the revised ordinance is adopted.

13.99.045 Health Benefit Credit

Notwithstanding Section 13.99.040, to the extent consistent with state and federal law, an Employer may apply up to $1.50 per hour paid toward an individual Employee’s medical benefits plan to partially satisfy the Employer’s minimum wage obligations to that Employee.

13.99.050 Waiver Through Collective Bargaining.

To the extent required or allowed by state or federal law, all or any portion of the applicable requirements of this Chapter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms.

13.99.060 Notice, Posting and Payroll Records.

     A. By August 1 of each year, the Department shall publish and make available to Employers a bulletin announcing the adjusted Minimum Wage rate, which shall take effect on October 1 of that year. In conjunction with this bulletin, the Department shall by August 1 of each year publish and make available to Employers, in all languages spoken by more than five percent of the work force in the City, a notice suitable for posting by Employers in the workplace informing Employees of the current Minimum Wage rate and of their rights under this Chapter.

     B. Every Employer shall post in a conspicuous place at any workplace or job site in the City where any Employee works the notice published each year by the Department informing Employees of the current Minimum Wage rate and of their rights under this Chapter. Every Employer shall post such notices in any language spoken by at least five percent of the Employees at the work-place or job site. Every Employer shall also provide each Employee at the time of hire with the Employer’s name, address, and telephone number in writing. Failure to post such notice shall render the Employer subject to administrative citation, pursuant to Section 13.99.090, Subsection A, of this Chapter.

     C. Employers shall retain payroll records pertaining to Employees for a period of four years, and shall allow the City access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Chapter. Where an Employer does not maintain or retain adequate records documenting wages paid and Service Charges collected and distributed or does not allow the City reasonable access to such records, the Employee’s account of how much he or she was paid shall be presumed to be accurate, absent clear and convincing evidence otherwise. Furthermore, failure to maintain such records or to allow the City reasonable access shall render the Employer subject to administrative citation, pursuant to Section 13.99.090, Subsection A, of this Chapter.

     D. If a violation of this Chapter has been finally determined, the City shall require the Employer to post public notice of the Employer’s failure to comply in a form determined by the City. Failure to post such notice shall render the Employer subject to administrative citation, pursuant to Section 13.99.090, Subsection A, of this Chapter.

     E. Every Employer shall post a notice in a conspicuous place at any workplace or job site in the City where any Employee works, explaining which employees are included in the chain of service and distribution of the Services Charges and how Service Charges are distributed among Employees.

13.99.070 Retaliation Prohibited.

It shall be unlawful for an Employer or any other party to discriminate in any manner or take any adverse action (including action relating to any term, condition or privilege of employment) against any person in retaliation for exercising rights protected under this Chapter. Rights protected under this Chapter include, but are not limited to: the right to file a complaint or inform any person about any party’s alleged noncompliance with this Chapter; and the right to inform any person of his or her potential rights under this Chapter or otherwise educate any person about this Chapter or to assist him or her in asserting such rights. Protections of this Chapter shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Chapter. Taking adverse action against a person within ninety (90) days of the person’s exercise of rights protected under this Chapter shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights. Failure to comply with this provision shall render the Employer subject to administrative citation, pursuant to Section 13.99.090, Subsection A, of this Chapter.

13.99.080 Implementation.

     A. Guidelines. The Department shall be authorized to coordinate implementation and enforcement of this Chapter and may promulgate appropriate guidelines or rules for such purposes. The Department shall seek out partnerships with community-based organizations and collaborate with the Labor Commission to facilitate effective implementation and enforcement of this Chapter. Any guidelines or rules promulgated by the Department shall have the force and effect of law and may be relied on by Employers, Employees and other parties to determine their rights and responsibilities under this Chapter. Any guidelines or rulesThe Department may establish procedures for ensuring fair, efficient and cost-effective implementation of this Chapter, including supplementary procedures for helping to inform Employees of their rights under this Chapter, for monitoring Employer compliance with this Chapter, and for providing administrative hearings to determine whether an Employer or other person has violated the requirements of this Chapter.

     B. Reporting Violations. An Employee or any other person may report to the Department in writing any suspected violation of this Chapter. The Department shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the Employee or person reporting the violation. Provided, however, that with the authorization of such person, the Department may disclose his or her name and identifying information as necessary to enforce this Chapter or other employee protection laws. In order to further encourage reporting by Employees, if the Department notifies an Employer that the Department is investigating a complaint, the Department shall require the Employer to post or otherwise notify its Employees that the Department is conducting an investigation, using a form provided by the Department. Failure to post such notice shall render the Employer subject to administrative citation, pursuant to Section 13.99.090, Subsection A, of this Chapter.

     C. Investigation. The Department shall be responsible for investigating any possible violations of this Chapter by an Employer or other person. The Department shall have the authority to inspect workplaces, interview persons and request the City Attorney to subpoena books, papers, records, or other items relevant to the enforcement of this Chapter.

     D. Informal Resolution. The Department shall make every effort to resolve complaints informally, in a timely manner, and shall have a policy that the Department shall take no more than six months to resolve any matter, before initiating an enforcement action. The failure of the Department to meet these timelines within six months shall not be grounds for closure or dismissal of the complaint.

13.99.090 Enforcement.

     A. Where prompt compliance is not forthcoming, the City and the Department shall take any appropriate enforcement action to secure compliance, including but not limited to the following:

          1. The City may issue an Administrative Citation pursuant to Chapter 1.28 of the Berkeley Municipal Code. The amount of this fine shall vary based on the provision of this Chapter being violated, as specified below:

               a. A fine of one thousand dollars ($1,000.00) may be assessed for retaliation by an Employer against an Employee for exercising rights protected under this Chapter for each Employee retaliated against.

               b. A fine of five hundred dollars ($500.00) may be assessed for any of the following violations of this Chapter:

                    i. Failure to post notice of the Minimum Wage rate;
                    ii. Failure to provide notice of investigation to Employees;
                    iii. Failure to post notice of violation to public;
                    iv. Failure to maintain payroll records for four years;
                    v. Failure to allow the City access to payroll records; and
                    vi. 
Failure to comply with Sections 13.99.040.E.4 and 13.99.060.E.

               c. A fine equal to the total amount of appropriate remedies, pursuant to subsection E of this section. Any and all money collected in this way that is the rightful property of an Employee, such as back wages, interest, and civil penalty payments, shall be disbursed by the City in a prompt manner.
2. Alternatively, the City may pursue administrative remedies in accordance with the following procedures:
a. Whenever the City determines that a violation of any provision of this Chapter

is occurring or has occurred, the City may issue a written compliance order to the Employer responsible for the violation.

b. Acomplianceorderissuedpursuanttothischaptershallcontainthefollowing information:

  1. The date and location of the violation;
  2. A description of the violation;

iii. The actions required to correct the violation;
iv. The time period after which administrative penalties will begin to accrue if compliance with the order has not been achieved;
v. Either a copy of this Chapter or an explanation of the consequences of noncompliance with this Chapter and a description of the hearing procedure and appeal process;

vi. A warning that the compliance order shall become final unless a written request for hearing before the City is received within fourteen days of receipt of the compliance order.

c. Following receipt of a timely request for a hearing, the City shall provide the Employer responsible for the violation with a hearing and, if necessary, a subsequent appeal to the City Council that affords the Employer due process. During the pendency of the hearing and any subsequent appellate process, the City will not enforce any aspect of the compliance order.

          32.The City may initiate a civil action for injunctive relief and damages and civil penalties in a court of competent jurisdiction.

     B. Any The City or any person aggrieved by a violation of this Chapter, any entity a member of which is aggrieved by a violation of this Chapter, or any other person or entity acting on behalf of the employee and all other employees affected by the employer’s violations, may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Chapter and, upon prevailing, shall be awarded reasonable attorneys’ fees and costs and shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any back wages unlawfully withheld, the payment of an additional sum as a civil penalty in the amount ofnot to exceed $50 to each Employee or person whose rights under this Chapter were violated for each day that the violation occurred or continued, reinstatement in employment and/or injunctive relief. Provided, however, that any person or entity enforcing this Chapter on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief to employees, and reasonable attorneys’ fees and costs.

     C. This Section shall not be construed to limit an Employee’s right to bring legal action for a violation of any other laws concerning wages, hours, or other standards or rights nor shall exhaustion of remedies under this Chapter be a prerequisite to the assertion of any right.

     D. Except where prohibited by state or federal law, City agencies or departments may revoke or suspend any registration certificates, permits or licenses held or requested by the Employer until such time as the violation is remedied. The City shall not renew any such license of an Employer with outstanding violations, as finally determined under this Chapter, until such time as the violation is remedied.

     E. The remedies for violation of this Chapter include but are not limited to:

          1. Reinstatement, the payment of back wages unlawfully withheld, and the payment of an additional sum as a civil penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this Code or state law.

          2. Interest on all due and unpaid wages at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date the wages are paid in full.

          3. Reimbursement of the City’s administrative costs of enforcement and reasonable attorney’s fees.

          4. If a repeated violation of this Chapter has been finally determined, the City may require the Employer to pay an additional sum as a civil penalty in the amount of not to exceed $50 to the City for each Employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this Code or state law.

     F. The remedies, penalties and procedures provided under this Chapter are cumulative and are not intended to be exclusive of any other available remedies, penalties and procedures established by law which may be pursued to address violations of this Chapter. Actions taken pursuant to this Chapter shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate a violation or to seek compensation for damages suffered.

13.99.100 Relationship to Other Requirements.

This Chapter provides for payment of a local Minimum Wage and shall not be construed to preempt or otherwise limit or affect the applicability of any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends other protections.

13.99.110 Reserved Application Of Minimum Wage To Welfare-To-Work Programs.

The Minimum Wage established under this Chapter shall apply to the Welfare-toWork programs under which persons must perform work in exchange for receipt of benefits. Participants in Welfare-to-Work Programs within the City of Berkeley shall not, during a given benefits period, be required to work more than a number of hours equal to the value of all cash benefits received during that period, divided by the Minimum Wage.

13.99.120 Fees.

Nothing herein shall preclude the City Council from imposing a cost recovery fee on all Employers to pay the cost of administering this Chapter.

13.99.130 Exemptions.

The requirements of Section 13.99.040 Subsection A of this chapter shall not apply to the following Employees:

1. Employees who are standing by or on-call according to the criteria established by the Fair Labor Standards Act, 29 U.S.C. Section 201. This exemption shall apply only during the time when the employee is actually standing by or on-call.

     1. 2. Job training program participants up to 25 years of age in temporary youth job training programs operated by Nonprofit Corporations or governmental agencies (Youth-in-Training participants). This exemption shall not apply to participants that work in excess of 1,040 hours in the program within a consecutive 365 day period.

     2. Youth-in-Trainingparticipantsworkingforfor-profitemployersmaybepaid80%of the Minimum Wage requirement as long as all of the following conditions are met:

          A. The youth employee is aged 21 or younger.

          B. The youth employee’s position includes stated learning objectives, close supervision, and guidance, and provides skills training for the youth employee.

          C. Youth-in-Training participants cannot do the same work as their older counterparts where the only difference is that they are paid less.

          D. TheYouth-In-Trainingwageispaidonlyduringthefirst1,040hoursofemployment of the first calendar year of employment. After 1,040 hours or the first calendar year of employment, whichever comes first, the youth employee shall be paid the Minimum Wage.

Section 3. That a new Berkeley Municipal Code Chapter 13.100 is adopted to read as follows:

Chapter 13.100

PAID SICK LEAVE

Sections:

13.100.010 Title.

13.100.020 Purpose.

13.100.030 Definitions.

13.100.040 Accrual and Use of Paid Sick Leave.

13.100.050 Waiver Through Collective Bargaining.

13.100.060 Notice, Posting and Payroll Records.

13.100.070 Retaliation Prohibited.

13.100.080 Implementation and Enforcement.

13.100.090 City Undertaking Limited Promotion of General Welfare.

13.100.100 Severability.

13.100.110 Other Legal Requirements.

Title. Purpose.

 

13.100.120 More Generous Employer Leave Policies.

13.100.010 Title.

This Chapter shall be known as the “Paid Sick Leave Ordinance”

13.100.020 Purpose.

Paid sick leave provides employees protection against loss of income during absences from work due to illness or injury to themselves, a family member or another designated person that requires direct care by the employee. Sick leave is intended to be used only for the purposes set forth herein.

Paid sick leave benefits both the individuals receiving the benefit and their families, as well as community public health. Many workers without paid sick leave choose to go to work while ill to avoid a reduction in their paychecks and threat to job security. As a result, the Centers for Disease Control and Prevention and other public health researchers have linked the lack of paid sick leave with the transmission of illness. Sick workers may infect their coworkers and members of the public in the workplace, on public transit, and in between. Studies have also found that workers with paid sick leave are more likely to access preventative health care.

13.100.030 Definitions.

The following terms shall have the following meanings:

     A. "City" shall mean the City of Berkeley.

     B. "Employer" shall mean any person, including corporate officers or executives, as defined in Section 18 of the California Labor Code, who directly or indirectly through any other person, including through the services of a temporary employment agency, staffing agency, subcontractor or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee, or any person receiving or holding a business license through Title 9 of the Berkeley Municipal Code.

     C. "Employee" shall mean any person who:

          1. In a calendar week performs at least two (2) hours of work for an Employer within the geographic boundaries of the City; and

          2. Qualifies as an employee entitled to payment of a minimum wage from any employer under the California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders published by the California Industrial Welfare Commission, or is a participant in a Welfare-to-Work Program.

     D. "Paid Sick Leave" shall mean have the meaning defined in California Labor Code § 233(b)(4) as follows: “Sick leave means accrued increments of compensated leave provided by an Employer to an Employee as a benefit of the employment for use by the Employee during an absence from the employment for any of the following reasons: (a) The Employee is physically or mentally unable to perform his or her duties due to illness, injury, or a medical condition of the Employee; (b) The absence is for the purpose of obtaining professional diagnosis or treatment for a medical condition of the Employee; (c) The absence is for other medical reasons of the Employee, such as pregnancy or obtaining a physical examination. "Sick leave" does not include any benefit provided under an Employee welfare benefit plan subject to the federal Employee Retirement Income Security Act of 1974 (Public Law 93-406, as amended) and does not include any insurance benefit, workers' compensation benefit, unemployment compensation disability benefit, or benefit not payable from the Employer's general assets”, except that the definition here extends beyond the Employee's own illness, injury, medical condition, need for medical diagnosis or treatment, or medical reason, to also encompass time taken off work by an Employee for the purpose of providing care or assistance to other persons, as specified further in 13.100.040(B)(2), with an illness, injury, medical condition, need for medical diagnosis or treatment, or other medical reason.

13.100.040 Accrual and Use of Paid Sick Leave.

     A. Accrual of Paid Sick Leave.

          1. Employees shall begin to accrue Paid Sick Leave on October 1, 2017, or at the commencement of employment with the Employer, whichever is later.

          2. For every 30 hours worked after Paid Sick Leave begins to accrue for an Employee, the Employee shall accrue one hour of Paid Sick Leave. Such leave shall accrue only in hour-unit increments; there shall be no accrual of a fraction of an hour of such leave.

          3. There shall be a cap of 48 hours of accrued Paid Sick Leave. Accrued Paid Sick Leave for Employees carries over from year to year (whether calendar year or fiscal year), but is limited to the aforementioned cap.

          4. An Employer is not required to provide financial or other reimbursement to an Employee upon the Employee's termination, resignation, retirement, or other separation from employment, for accrued Paid Sick Leave that the Employee has not used.

          5. The rate of pay shall be the Employee’s hourly wage. If the Employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried Employee, then the rate of pay shall be calculated by dividing the Employee’s total wages, not including overtime premium pay, by the Employee’s total hours worked in the full pay periods of the prior 90 days of employment.

     B. Use of Paid Sick Leave.

          1. An Employee may begin using Paid Sick Leave 90 calendar days after commencement of employment.

          2. An Employee may use Paid Sick Leave not only when he or she is ill or injured or for the purpose of the Employee's receiving medical care, treatment, or diagnosis, as specified more fully in California Labor Code § 233(b)(4), but also to aid or care for the following persons when they are ill or injured or receiving medical care, treatment, or diagnosis: child, parent, legal guardian or ward, sibling, grandparent, grandchild, and spouse, registered domestic partner under any state or local law, or designated person. "Child" includes a child of a domestic partner and a child of a person standing in loco parentis. The Employee may use all or any percentage of his or her Paid Sick Leave to aid or care for the aforementioned persons. The aforementioned child, parent, sibling, grandparent, and grandchild relationships include not only biological relationships but also relationships resulting from adoption; step-relationships; and foster care relationships.

          3. If the employee has no spouse or registered domestic partner, the employee may designate one person as to whom the employee may use paid sick leave to aid or care for the person. The opportunity to make such a designation shall be extended to the employee no later than the date on which the employee has worked 30 hours after paid sick leave begins to accrue pursuant to Section 13.100.040.A.2. There shall be a window of 10 work days for the employee to make this designation. Thereafter, the opportunity to make such a designation, including the opportunity to change such a designation previously made, shall be extended to the employee on an annual basis, with a window of 10 work days for the employee to make the designation.

          4. An Employer may not require, as a condition of an Employee's taking Paid Sick Leave, that the Employee search for or find a replacement worker to cover the hours during which the Employee is on Paid Sick Leave.

          5. If the need for paid sick leave is foreseeable, the Employee shall provide reasonable advance notification. If the need for paid sick leave is unforeseeable, the Employee shall provide notice of the need for the leave as soon as practicable.

          6. An Employer may lend paid sick days to an Employee in advance of accrual, at the Employer’s discretion and with proper documentation of Paid Sick Leave lent and accrued.

          7. An Employer shall provide payment for sick leave taken by an Employee no later than the payday for the next regular payroll period after the sick leave was taken.

          8. An Employer may limit the use of sick leave to 48 hours per calendar year.

          9. It shall be unlawful for any Employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under or in connection with this section, including, but not limited to, by using the taking of earned sick time under this section as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination, or otherwise subjecting an Employee to discipline for the use of earned sick time under this section.

          10.Employers who provide their Employees paid time off under a paid time off, vacation or other paid leave policy who make available an amount of paid time off sufficient to meet the accrual requirements of section A that may be used for the same purposes and under the same conditions as earned paid sick time under this section are not required by this Chapter to provide additional earned paid sick time.

13.100.050 Waiver Through Collective Bargaining.

To the extent required or allowed by state or federal law, all or any portion of the applicable requirements of this Chapter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms.

13.100.060 Notice, Posting and Payroll Records.

     A. Every Employer shall post in a conspicuous place at any workplace or job site in the City where any Employee works, the notice published each year by the City informing Employees of their Paid Sick Leave rights under this Chapter. Every Employer shall post such notices in any language spoken by at least five percent of the Employees at the work-place or job site. In instances where an Employee does not have a regular physical location where they perform their work, the Employer shall provide a copy of the Paid Sick Leave public notice to the Employee when they are hired or assigned to complete work within the City of Berkeley. The notice shall be provided to the employee before they commence work within the City limits and must be provided in the language most easily comprehended by the Employee. Failure to post such notice shall render the Employer subject to administrative citation pursuant to Section 13.100.080.B of this Chapter.

     B. Employers shall retain payroll records pertaining to Employees for a period of four years, and shall allow the City access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Chapter. Where an Employer does not maintain or retain adequate records documenting accrued paid sick leave or does not allow the City reasonable access to such records, the Employee’s account of how much he or she was paid shall be presumed to be accurate, absent clear and convincing evidence otherwise. Furthermore, failure to maintain such records or to allow the City reasonable access shall render the Employer subject to administrative citation, pursuant to Section 13.100.080.B of this Chapter. Such records shall include the amount of hours worked, wages paid, and Paid Sick Leave accrued.

     C. If a violation of this Chapter has been finally determined, the City shall require the Employer to post public notice of the Employer’s failure to comply in a form determined by the City. Failure to post such notice shall render the Employer subject to administrative citation, pursuant to Section 13.100.080.B of this Chapter.

     D. Reporting of Paid Sick Leave. Employers shall include the number of hours of Paid Sick Leave accrued to date in such records that they provide to Employees at the end of each pay period. Failure to provide such records shall render the Employer subject to administrative citation, pursuant to Section 13.100.080.B, of this Chapter.

13.100.070 Retaliation Prohibited.

     A. It shall be unlawful for an Employer or any other party to discriminate in any manner or take any adverse action (including action relating to any term, condition or privilege of employment) against any person in retaliation for exercising rights protected under this Chapter. Rights protected under this Chapter include, but are not limited to: the right to file a complaint or inform any person about any party’s alleged noncompliance with this Chapter; and the right to inform any person of his or her potential rights under this Chapter or otherwise educate any person about this Chapter or to assist him or her in asserting such rights. Protections of this Chapter shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Chapter. Taking adverse action against a person within ninety (90) days of the person’s exercise of rights protected under this Chapter shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights. Failure to comply with this provision shall render the Employer subject to administrative citation, pursuant to Section 13.100.080.B of this Chapter.

13.100.080 Implementation and Enforcement.

     A. The City shall be authorized to coordinate implementation and enforcement of this Chapter and may promulgate appropriate guidelines or rules for such purposes. Any guidelines or rules promulgated by the Agency shall have the force and effect of law and may be relied on by employers, employees, and other persons to determine their rights and responsibilities under this Chapter. Any guidelines or rules may establish procedures for ensuring fair, efficient, and cost-effective implementation of this Chapter, including supplementary procedures for helping to inform employees of their rights under this Chapter, for monitoring employer compliance with this Chapter, and for providing administrative hearings to determine whether an employer or other person has violated the requirements of this Chapter.

     B. Where prompt compliance is not forthcoming, the City shall take any appropriate enforcement action to secure compliance, including but not limited to the following:

          1. The City may issue an Administrative Citation pursuant to Chapter 1.28 of the Berkeley Municipal Code. The amount of this fine shall vary based on the provision of this Chapter being violated, as specified below:

               a. A fine of one thousand dollars ($1,000.00) may be assessed for retaliation by an Employer against an Employee for exercising rights protected under this Chapter for each Employee retaliated against.

               b. A fine of five hundred dollars ($500.00) may be assessed for any of the following violations of this Chapter:

                    i. Failure to post notice of the Paid Sick Leave Ordinance
                    ii. Failure to provide notice of investigation to Employees
                    iii. Failure to post notice of violation to public
                    iv. Failure to maintain payroll records documenting accrual of Paid Sick Leage for four years; and
                    v. Failure to allow the City access to payroll records

               c. A fine equal to the total amount of appropriate remedies, pursuant to subdivision B. Any and all money collected in this way that is the rightful property of an Employee, such as back wages, interest, and civil penalty payments, shall be disbursed by the City in a prompt manner.

          2. The City may initiate a civil action for injunctive relief and damages and civil penalties in a court of competent jurisdiction.

     C. The City or any person aggrieved by a violation of this Chapter, any entity a member of which is aggrieved by a violation of this Chapter, or any other person or entity acting on behalf of the employee and all other employees affected by the employer’s violations or on behalf of the public as provided for under applicable state law, may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Chapter and, upon prevailing, shall be awarded reasonable attorneys’ fees and costs and shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any back wages unlawfully withheld, the payment of an additional sum as a civil penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day that the violation occurred or continued, reinstatement in employment and/or injunctive relief. Provided, however, that any person or entity enforcing this Chapter on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief to Employees, and reasonable attorneys’ fees and costs.

     D. This Section shall not be construed to limit an Employee’s right to bring legal action for a violation of any other laws concerning wages, hours, or other standards or rights nor shall exhaustion of remedies under this Chapter be a prerequisite to the assertion of any right.

     E. Except where prohibited by state or federal law, City agencies or departments may revoke or suspend any registration certificates, permits or licenses held or requested by the Employer until such time as the violation is remedied. The City shall not renew any such license of an Employer with outstanding violations, as finally determined under this Chapter, until such time as the violation is remedied.

     F. The remedies for violation of this Chapter include but are not limited to:

          1. The issuance of Paid Sick Leave time unlawfully withheld.

          2. Reimbursement of the City’s administrative costs of enforcement and reasonable attorney’s fees.

          3. If a repeated violation of this Chapter has been finally determined, the City may require the Employer to pay an additional sum as a civil penalty in the amount of $50 to the City for each Employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this Code or state law.

     G. The remedies, penalties and procedures provided under this Chapter are cumulative and are not intended to be exclusive of any other available remedies, penalties and procedures established by law which may be pursued to address violations of this Chapter. Actions taken pursuant to this Chapter shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate a violation or to seek compensation for damages suffered.

13.100.090 City Undertaking Limited Promotion of General Welfare.

In undertaking the adoption and enforcement of this Chapter, the City is undertaking only to promote the general welfare. The City is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury. This Chapter does not create a legally enforceable right by any member of the public against the City.

13.100.100 Severability.

If any part or provision of this Chapter, or the application of this Chapter to any person or circumstance, is held invalid, the remainder of this Chapter, including the application of such part or provision to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the provisions of this Chapter are severable.

13.100.110 Other Legal Requirements.

This Chapter provides minimum requirements pertaining to paid sick leave and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater accrual or use by employees of sick leave, whether paid or unpaid, or that extends other protections to employees.

13.100.120 More Generous Employer Leave Policies.

This Chapter provides minimum requirements pertaining to paid sick leave and shall not be construed to prevent employers from adopting or retaining leave policies that are more generous than policies that comply with this Chapter. Employers are encouraged to provide more generous leave policies than required by this Chapter.

Section 4. Conflicting Measures.
This measure is intended to be comprehensive and fully address and occupy the field of the minimum wage and related employee benefits such as paid sick leave. It is the intent of the people of the City of Berkeley that in the event this measure and any other measure relating to the same field, appear on the same ballot, the provisions of the other measure shall be deemed in their entirety to be in conflict with this measure. If this measure receives a greater number of affirmative votes than any conflicting measure or measures, this measure shall prevail in its entirety, and all provisions of such other measure or measures shall be null and void in their entirety. If this measure is approved by the voters but does not receive a greater number of affirmative votes than any other measure(s) appearing on the same ballot relating to the same field, then this measure shall take effect to the extent not in conflict with said other measure(s).

Section 5. Amendment by City Council.
The City Council, by a two-thirds vote, may amend Chapter 13.100 to implement and further its purpose, and not in a manner that reduces either the minimum wage levels or the provisions relating to service charges that have been adopted by the voters.

Section 6. Severability.
If any word, phrase, sentence, part, section, subsection, or other portion of this ordinance, or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the prescribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect. The People of the City of Berkeley hereby declare that they would have passed this ordinance, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional.
    

This Ballot Measure Has Been Superseded

Backers of both BB and CC recommend a NO vote

There were two competing minimum-wage measures on the ballot. However, in the time since they were placed on the ballot, a compromise measure was reached and adopted as an ordinance by the City Council. This new ordinance increases the minimum wage to $15 per hour in 2018, includes mandated paid sick leave (six days for small business employees, nine days for others), and phases out youth-in-job training.

Authors of both Measure BB and Measure CC recommend a “No” vote on both. If either measure passes, the measure with the most votes will go into effect and overrule the new City Ordinance. 

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