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Can Grocers Be Required to Provide 'Hero Pay' for Workers?

Millennials Grocery Shopping
By Richard Dahl on January 29, 2021 9:48 AM

Several city governments on the West Coast believe that front-line workers in large grocery stores deserve bonuses for their services during the pandemic.

But instead of merely encouraging their employers to hike the workers' pay like many of them did during the pandemic's early days, the elected officials in those cities are seeking to pass ordinances requiring employers to do it.

Seattle became the first city to take that step when the city council voted 8-0 on January 25 to require grocery stores to pay workers an additional $4 per hour for the duration of the pandemic.

Long Beach, California, may be next. On January 19, the Long Beach City Council gave initial approval to an ordinance that would require all grocery stores that employ at least 300 people to give each of them a $4 hourly bump in “hero pay." The ordinance, which calls for the pay hikes to sunset after 120 days, would become official after the council gives it a second reading on February 2.

Meanwhile, several other California cities – including Los Angeles and San Francisco, where the proposed hike is $5 per hour – are also strongly considering it.

No Federal Requirements

The idea of hazard pay is nothing new – the U.S. Labor Department classifies it as “additional pay for performing hazardous duty or work involving physical hardship." Still, the Labor Department neither regulates hazard pay nor requires that employers provide hazard pay.

When the coronavirus pandemic broke out in 2020, the idea of hazard pay was bandied about in several federal relief packages – the CARES Act, the HEROES Act, the HEALS Act, and the final stimulus bill in December – but was dropped from each. Several states, however, did use CARES Act funds to create hazard-pay programs, some of which have expired.

Grocers Association Brings Suit

What's new about the municipal hazard-pay actions on the West Coast is that they don't involve public dollars. They are mandates that private employers must provide the additional funds. Justifying the ordinances, city officials say the grocery industry is doing very well financially at a time when people are staying home and avoiding restaurants.

Can they do that? A firm answer is hard to come by, but here's what the U.S. Labor Department says, on a Q&A page about hazard-pay requirements: “Issues such as hazard pay are usually determined privately between employers and employees of their authorized representatives. State or local laws may also impose other obligations."

That last part might be worth repeating: State or local laws may impose obligations.

That hasn't stopped the California Grocers Association from trying to stop the hero-pay attempt in Long Beach. CGA filed a lawsuit against the Long Beach City Council on January 20, claiming that the ordinance violates the constitutional requirement that similarly situated people must be treated alike – it singles out certain grocers and ignores other groups. CGA also contends that the ordinance is preempted by the National Labor Relations Act, which protects the integrity of the collective-bargaining process.

On January 22, U.S. District Judge Dolly M. Gee ruled that the case may proceed by denying CGA's motion for a temporary restraining order to halt enactment of the ordinance. The next court date is February 18.

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