Ordinances Requiring Premium Pay for Employees Working in Pandemic are Upheld

• Sep 07, 2021
• By: Carolyn Walker

The COVID-19 pandemic has changed the employment world in a lot of different ways.  For several cities in California, this has translated to premium or “hero” pay for employees such as grocery workers still working amid the pandemic.  

California cities such as Long Beach and Coachella have adopted ordinances like the Premium Pay for Grocery Workers Ordinance which requires large agricultural businesses, restaurants, pharmacies and grocery stores doing business within the city limits to pay their employees an additional $4 an hour, in addition to their existing hourly rate.

The purpose of the increased pay is two-fold.  First, the additional wages recognize the increased risks that these employees face as they continue to work during the pandemic.  Second, the pay increase encourages employees to remain working, or work more hours, so that these essential businesses remain open and operating during the pandemic.  This, in return, not only helps the business owners, the employees, their families, and consumers, but it also protects farm workers who must continue to work during the pandemic to keep the food supply chains operating, and people fed.

In March of 2021, the City of Long Beach successfully defended a motion for a preliminary injunction to stop the city’s “hero pay” ordinance.  The ordinance was upheld and will remain in place.  In denying the preliminary injunction, the Court stated:

“The COVID-19 pandemic has been awful.  In an effort to avoid illness, permanent health damage and death, we have lived in a state of quarantine for an entire year and counting. Meanwhile, certain workers deemed ‘essential’ have continued to work in roles that do not practically permit quarantining from others. For example, grocery workers have served an essential function by keeping stores open, stocked and sanitized, despite the perils of working frequently within six feet of the general public.” (California Grocers Association v. City of Long Beach, 2:21-cv-00524.)

In July of 2021, Western Growers Association, California Fresh Fruit Association and Growing Coachella Valley filed suit against the City of Coachella on behalf of their members claiming the City Ordinance was invalid under federal and state constitutional law and other California law because it was vague and violated the equal protection clause of both constitutions.  The plaintiffs also argued that the ordinance was preempted by federal immigration law as many of the agricultural laborers are employed on temporary immigration visas and their wages are already regulated by federal immigration law.  They also alleged that the City’s ordinance violated California procedural laws. (See Western Growers Association, et al v. City of Coachella, et al. 5:21-cv-00602.)

The U.S. District Court for the Central District of California disagreed with the plaintiffs’ arguments and dismissed the lawsuit on July 12, 2021, denied the preliminary injunction request, and upheld the city ordinance.

Based on these two recent cases, “hero pay” ordinances have been successfully upheld as constitutional by the Central District Court of California.  This has paved the way for more cities who are looking to protect their residents by keeping the food chain supply operating and people fed, even during a pandemic.