#4 Worker's Rights

Fair Treatment of Hourly-Wage Employees and Gig Workers

City of Bellingham Initiative No. 2021-04

AN ORDINANCE OF THE CITY OF BELLINGHAM, WASHINGTON REGARDING FAIR TREATMENT OF HOURLY-WAGE EMPLOYEES AND GIG WORKERS

WHEREAS, the Covid-19 pandemic has revealed the importance of hourly-wage and gig workers to the workings of our local economy and the health, safety, and well-being of our entire community.

WHEREAS, Covid-19 pandemic has demonstrated the essential nature of work done by many hourly-wage and gig workers, especially those working in groceries, food service, healthcare, education, childcare and public facing retail establishments.

WHEREAS, the Covid-19 pandemic has shown that, despite importance of these hourly-wage and gig workers to the health, safety, and well-being our communities, they often face uncertain and arbitrary schedules and have not been adequately compensated for the hazards that they face when under a declared state of emergency.

WHEREAS, Black, Indigenous, and People of Color (BIPOC) are overrepresented among the retail frontline workforce.

WHEREAS, the Brookings Metropolitan Policy Program has reported that the United States’ top retail companies, including grocery businesses, have earned record-breaking profits during the pandemic.

WHEREAS, retail employees have not been compensated for the risks they face as essential workers, nor have they received a fair share of their companies record-breaking profits.

WHEREAS, the City of Bellingham should have a program ensuring adequate compensation for these employees during the rest of the Covid-19 pandemic and during future states of emergency.

WHEREAS, when an employee’s hours are reduced, it changes the amount of income an employee will earn that pay period.

WHEREAS, when an employee is asked to work additional hours or an employee’s hours are changed with minimal notice, such changes often create conflicts with an employee’s other responsibilities such as child care, other jobs, or school schedules.

WHEREAS, when an employee is required to remain available to come in to work if needed, but is not compensated if not needed, the employee is therefore not compensated for foregoing the opportunity to tend to other responsibilities or pursue other interests.

WHEREAS, if employers maintain a large pool of part-time employees to draw on when extra staff are needed, employees in that pool might work fewer and more variable hours than employees who are not part-time.

WHEREAS,Dr. Susan Lambert’s study, “Schedule Unpredictability among Early Career Workers in the US Labor Market: a National Snapshot,” found that 40 percent of hourly workers knew their work schedule less than one week in advance, and 74 percent had fluctuating hours during a single month, with 50 percent having fluctuations of more than eight hours or one day’s pay.

WHEREAS, Dr. Lonnie Golden found that, by income level, nationally the lowest income workers face the most irregular schedules and that 43 percent of part-time workers were working fewer hours per week than they preferred.

WHEREAS, part-time work has a correlation with national poverty levels; for example, the poverty rate for households with children is 11.2 percent with one full-time worker in the household and 27.5 percent with a part-time worker, the poverty rate for Hispanics is 9.4 percent with one full-time worker in the household and 44.1 percent with a part-time worker, and the poverty rate for African-Americans is 6.9 percent with one full-time worker in the household and 55.5 percent with a part-time worker.

WHEREAS, several jurisdictions across the country, including Oregon, California, New York, North Carolina, Connecticut, Washington D.C., and Illinois are considering or have passed scheduling legislation to address the issues faced by employees with unpredictable work schedules and consequently unpredictable income.

WHEREAS, hourly-wage workers deserve predictability in terms of their work schedules.

NOW, THEREFORE, THE CITY OF BELLINGHAM DOES ORDAIN:

Section 1. Purpose and Intent

It is the policy of the City of Bellingham to protect and promote public health, safety, and welfare. This ordinance protects and promotes public health, safety, and welfare for hourly-wage and gig workers by hazard pay during any declared state of emergency and ensuring permanent access to regular scheduling for hourly-wage workers.
The intent of this Article is to address unfair work conditions faced by hourly-wage and gig workers in ways that advance race racial and social equity, promote greater economic security, further the health, safety and welfare of employees. This Article does so by mandating $4 per hour premium pay, establishing predictable work schedules that advance racial and social equity, promote greater economic security, further the health, safety and welfare of employees, create opportunity for employee input into scheduling practices, and create a mechanism for employees to obtain access to additional hours of work before the employer hires new employees from an external applicant pool or subcontractors, including hiring through the use of temporary services or staffing agencies.

Section 2. Definitions

“Adverse action” means denying a job or promotion, demoting, terminating, failing to rehire after a seasonal interruption of employment, threatening, penalizing, engaging in unfair immigration-related practices, filing a false report with a government agency, changing an employee's status to a nonemployee, or otherwise discriminating against any person for any reason. “Adverse action” may involve any aspect of work, including compensation, work hours, responsibilities, or other material change in the terms and conditions of work. “Adverse action” also encompasses any action by the hiring entity or a person acting on the hiring entity’s behalf that would dissuade a reasonable person from exercising any right afforded by this law. "Adverse action" for an employee may involve any aspect of employment, including pay, work hours, responsibilities, or other material change in the terms and condition of employment.
“Aggrieved party” means the employee or gig worker or other person who suffers tangible or intangible harm due to the employer’s violation of this Article.
“At time of hire” means the period after offer and acceptance of employment, and on or before the commencement of employment.
“Bona fide business reason” means a reason that has a substantial relation to the achievement of a legitimate business objective.
“Career-related educational or training program” means an educational or training program; a pre-apprenticeship or apprenticeship program; or program of study offered by a public, private, or nonprofit career and technical education school, institution of higher education, or other entity that provides academic education, career and technical education, or training, including but not limited to remedial education or English as a second language, as appropriate.
“Caregiver” means an employee who has the responsibility of providing ongoing care or education, including responsibility for securing the ongoing care or education of a child; and ongoing care, including the responsibility for securing the ongoing care of an individual with a serious health condition.
“Chosen family” means a person or persons with whom an employee has non-biological kinship bonds, whether legally recognized or not, for mutual support and that satisfy the typical role of family as a support system.
“Employee” means any individual employed by the employer, including but not limited to full-time employees, part-time employees, and temporary workers. An alleged employer bears the burden of proof that the individual is not an employee, in accordance with the “ABC” test. To succeed under this test, for the purposes of this ordinance, the employer must show by a preponderance of the evidence as follows:
1. The worker is free from the employer's control or direction in performing the work.
2. And, the work takes place outside the usual course of the business of the company and off the site of the business.
3. And, the worker is customarily engaged in an independent trade, occupation, profession, or business of the same nature as the work performed.
“Employer” means any individual, partnership, association, corporation, business trust, or any entity, person or group of persons, or a successor thereof, that employs another person and includes any such entity or person acting directly or indirectly in the interest of the employer in relation to the employee. More than one entity may be the “employer” if employment by one employer is not completely disassociated from employment by the other employer.
“Family relationship” means a relationship with a child, spouse, parent, grandchild, grandparent, sibling, parent of spouse, fiancee, or partner of the employee, or any individual related to the employee by blood or affinity, whose close association with the employee approximates a family relationship (also known as “chosen family”).
“Interactive process” means a timely, good faith process that includes a discussion between the employer and the employee for the purpose of arriving at a mutually beneficial arrangement for a work schedule that meets the needs of the employee and the employer. The discussion may include the proposal of alternatives by the employee and the employer.
“Major life event” means a significant event related to the employee’s access to the workplace due to changes in the employee’s transportation or housing; the employee’s own serious health condition; the employee’s responsibilities as a caregiver; the employee’s enrollment in a career-related educational or training program; or the employee’s other job or jobs.
“On-call shift” means any time that the employer requires the employee to be available to work, contact the employer or the employer’s designee, or wait to be contacted by the employer or the employer’s designee, for the purpose of determining whether the employee must report to work. During such time, on-call status applies regardless of whether the employee is located on or off the employer’s premises.
“On-site” employees means employees who are unable to work remotely and therefore must be physically present at their workplace, many times in congregate settings, in order to do their job.
“Franchise” means a business whereby the owner licenses its operations—along with its products, branding and knowledge—in exchange for a franchise fee.
“Rate of inflation” means 100 percent of the annual average growth rate of the Consumer Price Index for Urban Wage Earners and Clerical Workers, termed CPI-W, for the Seattle-Tacoma-Bremerton Area, for the 12 month period ending in August, provided that the percentage increase shall not be less than zero.
“Regular rate of pay” means the hourly rate that is used to determine the employee’s overtime premium (i.e. one and one-half times the regular rate of pay) for all hours worked in excess of forty per work week.
“Scheduled rate of pay” means the hourly rate that the employee is entitled to earn for an hour worked in a particular work shift.
“Seasonal employment” means a period of employment that is cyclical in nature, occurs at approximately the same time each year, often to accommodate a seasonal increase in business, and lasts for a duration of less than twelve months during any year.
“Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves: inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity; or continuing treatment by a health care provider.
“Work schedule” means the hours, days and times, including regular and on-call shifts, when the employee is required by the employer to perform duties of employment for which the employee will receive compensation for a given period of time. “Work schedule change” means any employer-requested modification to the employee’s work schedule that occurs after the advance notice required in Section 3, including but not limited to: the addition or reduction of hours; cancellation of a work shift or portion of a work shift; a change in the date or time of a work shift by the employer; or scheduling the employee for an on-call shift for which the employee does not need to report to work.
“Work shift” means the specific and consecutive hours the employer requires the employee to work or to be on call to work.
“Work week” means a fixed and regularly recurring period of 168 hours or seven consecutive 24 hour periods; it may begin on any day of the week and any hour of the day, and need not coincide with a calendar week.
“Written” or “writing” means a printed or printable communication in physical or electronic format including a communication that is transmitted through email, text message or a computer system, or is otherwise sent and maintained electronically.
“Year” means any fixed, consecutive 12 month period of time.

Section 3. Good faith estimate of work schedule

For new employees, the employer shall provide the employee with a written good faith estimate of the employee’s work schedule at time of hire. The good faith estimate shall include the median number of hours the employee can expect to work each work week, and whether the employee can expect to work on-call shifts.
For existing employees, the employer shall revise the good faith estimate once every year calculated from the point of the last good faith estimate, and when there is a significant change to the employee’s work schedule due to changes in the employee’s availability or to the employer’s business needs.
The good faith estimate shall not constitute a contractual offer and the employer shall not be bound by the estimate. However, the employer shall initiate an interactive process with the employee to discuss any significant change from the good faith estimate, and if applicable state a bona fide business reason for the change.
The employer shall include the good faith estimate, in English and the employee’s primary language(s), with the written notice of employment information.

Section 4. Right to request input into the work schedule

At time of hire and during employment, the employee may identify any limitations or changes in work schedule availability. The employee has the right to request not to be scheduled for work shifts during certain times or at certain locations and the right to identify preferences for the hours or locations of work.
The employer shall consider and respond to employee requests under subsection 1 as follows:
1. If the employee’s request is not due to a major life event, the employer shall engage in an interactive process with the employee to discuss the request. The employer may grant or deny the request for any reason that is not unlawful.
2. If the employee’s request is due to a major life event, the employer shall engage in an interactive process with the employee to discuss the request, and may require verifying information from the employee with adequate notice and reasonable time to respond.
  1. The employer shall grant the request unless the employer has a bona fide business reason for denial and shall provide a written response.
  2. In the event of a denial, the employer’s written response shall provide an explanation of the complete or partial denial of the request, and the bona fide business reason for the decision.

Section 5. Right to rest between work shifts

Unless the employee requests or consents to work such hours, the employer shall not schedule the employee’s next work shift or require the employee’s to begin work:
1. Less than ten hours after the end of the previous calendar day’s work shift;
2. Less than ten hours following the end of a work shift that spanned two calendar days.
The employer shall compensate the employee who works legally scheduled hours as provided subsection 1 at one and one-half times the employee’s scheduled rate of pay for the hours worked that are less than ten hours apart.
The requirement for additional compensation in subsection 2 shall not apply for work hours that constitute a split shift.

Section 6. Advance notice of work schedule

Subject to the provisions of Section 7, the employer shall provide employees with a written work schedule at least 14 calendar days before the first day of the work schedule.
For new employees at time of hire, and for existing employees returning to work after a leave of absence, the employer may provide the employee with a written work schedule that runs through the last date of the currently posted schedule. Thereafter, the employer shall include these employee(s) in the schedule for existing employees as described in subsection 1.
The written work schedule shall include all regular and on-call shifts for the work period.
The employer shall post the written work schedule in a conspicuous and accessible location, in English and in the primary language(s) of the employee(s) at the particular workplace.

Section 7. Notice of work schedule changes

For employer-requested changes to the written work schedule that occur after the advance notice required in Section 6:
1. The employer shall provide the employee with timely notice of the change by in-person conversation, telephone call, email, text message, or other accessible electronic or written format; and
2. The employee may decline to work any hours not included in the employee’s work schedule.
For employee-requested changes to the written work schedule that occur after the advance notice required in Section 6:
1. The employee shall provide notice of the request per the employer's usual and customary notice for foreseeable changes, or as soon as practicable for unforeseeable circumstances;
2. And, the employee shall comply with the employer's reasonable normal notification requirements and/or call-in procedures, provided that such requirements do not interfere with the purposes for which the work schedule change is needed if it is due to a reason covered by another local, state or federal law or is due to a major life event.
3. The employer’s authority to ask or require the employee to find a replacement employee for coverage of any hours during which the employee is unable to work a scheduled shift in accordance with the following requirements:
  1. The employer can not ask or require the employee to find replacement coverage if the employee is unable to work the scheduled hours due to a reason covered by another local, state or federal law that prohibits asking such questions or protects the absence from employer interference.
  2. The employer may ask but not require the employee to find replacement coverage if the employee is unable to work scheduled hours due to an emergency or major life event that prevents the employee from working scheduled hours. The employer may require a written statement from the employee verifying that the employee is unable to work the scheduled hours due to an emergency or major life event. The employee shall not have to explain the nature of the emergency or major life event.
  3. The employer may require the employee to find replacement coverage if the employee is unable to work the scheduled hours for reasons not covered under subsections i and ii.

Section 8. Compensation for work schedule changes

The employer shall compensate employees for each employer-requested change to the employee’s written work schedule that occurs after the advance notice required in Section 6 in accordance with the following subsections.
The employer shall compensate the employee with one hour of pay at the employee’s scheduled rate of pay, in addition to wages earned, when the employer:
1. Adds hours of work; or
2. Changes the date or start or end time of a work shift with no loss of hours.
The employer shall compensate the employee with no less than one-half times the employee’s scheduled rate of pay per hour for any scheduled hours the employee does not work because the employer:
1. Subtracts hours from a regularly scheduled work shift;
2. Or, changes the date or start or end time of a work shift resulting in a loss of hours; or
3. Or, cancels a work shift;
4. Or, schedules the employee for an on-call shift for which the employee does not need to report to work.
The requirements for additional compensation in subsections b and c shall not apply under the following circumstances:
1. Mutually agreed upon work shift swaps or coverage among employees. The employer may require that it pre-approve work shift swaps or coverage and may assist employees in finding such arrangements. Assistance shall be limited to helping an employee identify other employees who may be available to provide coverage or shift swap and does not include the employer arranging the shift swap or coverage.
2. Or, additional hours that the employee volunteers to work in response to a mass communication, in writing from the employer, about the availability of additional hours, provided that the mass communication is
  1. Only used for additional hours that are the result of another employee being unable to work scheduled hours, and
  2. It is clear that accepting such hours is voluntary and the employee has the right to decline such hours; Additional hours that an employer requests employees who are currently working, through an in-person group communication, to work in order to address present and unanticipated customer needs, so long as the hours are consecutive to the hours the employee is currently working and the employee consents to take the hours.
3. Or, employee-requested changes including additional or subtracted hours that the employee voluntarily makes to the employee’s work schedule and documents in writing;
4. Or, employee hours that are subtracted due to disciplinary reasons, provided the employer documents in writing the incident leading to discipline;
5. Or, operations cannot begin or continue due to threats to employees or property, or due to the recommendation of a public official that work cannot begin or continue; operations cannot begin or continue because public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system;
6. Or, operations cannot begin or continue due to the event of a natural disaster.

Section 9. Pattern or practice of under-scheduling

The employer shall not engage in a pattern or practice of significant under-scheduling where the hours that employees actually work are significantly above the hours in the written work schedule required by Section 6.
Access to hours for existing employees: Before hiring new employees from an external applicant pool or subcontractors, including hiring through the use of temporary services or staffing agencies, an employer must offer additional hours of work to existing employees when those hours become available at their place of work.
Except already scheduled in Section 6 and as provided in this Section, the employer must post written notice of available hours of work for at least three consecutive calendar days. If the employer posts the notice in electronic format, all employees in the workplace must have access to it on-site. The employer must post the notice in English and the primary language(s) of the employee(s) at the particular workplace. The City shall create and distribute a model notice in English, Spanish and other languages that are necessary for employers to comply with this subsection. The notice must contain the following information:
1. Description and title of the position;
2. Required qualifications for the position;
3. Total hours of work being offered;
4. Schedule of available work shifts;
5. Whether the available work shifts will occur at the same time each week; and
6. Length of time the employer anticipates requiring coverage of the additional hours. The employer must post the notice in a conspicuous and accessible location where employee notices are customarily posted.
The employer shall offer additional hours of work to an existing employee who has responded to the offer of work, and who, to a reasonable employer acting in good faith, is qualified with the skills and experience to perform the work.
1. The employer shall give the employee at least two consecutive calendar days, running from the date of the employer’s offer, to accept the additional hours of work.
2. If more than one qualified employee responds to the offer of additional hours of work, the employer may distribute the hours among interested employees or may offer all of the available hours to one qualified employee. The employer may limit distribution of hours to full work shifts rather than parceling hours among employees. The employer may choose among 2 qualified internal candidates following the employer’s usual and customary hiring procedures.
3. If the employee accepts additional hours of work for seasonal employment, the employer may reasonably delay scheduling such hours and permit new employees to start working for training purposes, provided that the employer follows the employer’s usual and customary practices for training new employees and the employer provides the existing employee with a prospective start date for the additional hours.
4. The employer is encouraged to make reasonable efforts to offer employees training opportunities to gain the skills and experience to perform work for which the employer typically has additional needs.
If no employee responds to the written notice of additional hours of work following the three consecutive calendar day posting requirement, or accepts an offer of additional hours during the two consecutive calendar day acceptance period, the employer may immediately proceed with hiring new employees from an external applicant pool or subcontractors to work the additional hours.
This Section shall not apply, in whole or in part, as follows:
1. If the employer provides notice of additional hours to all employees and receives written confirmation from all such employees that they are not interested in accepting additional hours of work, the employer may immediately proceed with hiring new employees from an external applicant pool or subcontractors to work the additional hours.
2. If the employer chooses to maintain a written access to hours list, the requirement to offer additional hours of work in subsection 2 may be limited to employees on the access to hours list. At time of hire, the employer shall notify the employee of the ability to be on the access to hours list for written notice of additional hours. The employer shall place the employee on the access to hours list, identifying their availability for additional hours. The employee may opt out of the availability list. The employee may choose to be added or removed from the access to hours list by notifying the employer at any time during employment. When being added to the access to hours list, each employee shall, to the extent possible, identify those days and times that they are available for additional work. The employer shall make the access to hours list accessible to employees for viewing upon request.
3. If the employer provides notice of additional hours of work to all employees on the access to hours list and receives written confirmation from all such employees that they are not interested in accepting the additional hours of work, the employer may immediately proceed with hiring new employees from an external applicant pool or subcontractors to work the additional hours. If additional hours become available, the employer must first attempt to use the access to hours list before hiring externally. The employer may limit the distribution of hours to full shifts. If the employer makes a good faith effort to contact employees on the access to hours list and the employees decline or do not respond to the offer, the employer may then hire externally. Employers may use an online or computer based scheduling system and notify the employee through the scheduling system when hours that match their availability from the access to hours list become available.
For purposes of this Section, an employee may not qualify for the additional hours under the following circumstances:
1. Overtime or predictability pay would be required if the employee received the additional hours;
2. Or, the employee is not currently in good standing due to a bona fide employer documented discipline or improvement plan;
3. Or, the employee is barred by other laws from conducting the work required in the available hours.
This Section does not apply when an employee consents to work additional hours, on less than 14 days’ notice, when the employee is accepting a long-term schedule change based on an access to hours posting.
This Section shall not be construed to require the employer to offer employees work hours paid at the overtime premium (i.e. one and one-half times the regular rate of pay) nor to prohibit any employer from offering such work hours.

Section 10. Hazard Pay

If a State of Emergency is declared in any jurisdiction which includes the City of Bellingham, employers shall pay all on-site employees $4 per hour in hazard pay or its equivalent in a prorated salary premium.
Businesses with fewer than 30 employees, with the exception of franchises, will only be required to pay a maximum of 14 days of Hazard Pay under this Section per year.

Section 11. Notice and posting

The City shall create and distribute a poster giving notice of the rights afforded by this Article 10.
The City shall create and distribute the poster in English, Spanish, and any other languages that are necessary for employers to comply with Section 3.

Section 12. Employer Compliance

Employers have an affirmative burden to demonstrate compliance with Article 10. Failure to retain records that demonstrate compliance will be construed against employers.
No employer or any other person shall interfere with, restrain, deny, or attempt to deny the exercise of any right protected under this Article 10.
No employer or any other person shall take any adverse action against any person because the person has exercised in good faith the rights protected under this Article. Such rights include but are not limited to the right to make inquiries about the rights protected under this Article; the right to inform others about their rights under this Article; the right to inform the person’s employer, union, or similar organization, and/or the person’s legal counsel or any other person about an alleged violation of this Article; the right to bring a civil action for an alleged violation of this Article; the right to testify in a proceeding under or related to this Article; the right to refuse to participate in an activity that would result in a violation of city, state or federal law; and the right to oppose any policy, practice, or act that is unlawful under this Article.
No employer or any other person shall communicate to a person exercising rights protected under this Article, directly or indirectly the willingness to inform a government employee that the person is not lawfully in the United States, or to report, or to make an implied or express assertion of a willingness to report, suspected citizenship or immigration status of an employee or a family member of the employee to a federal, state, or local agency because the employee has exercised a right under this Article.
An adverse action by an employer against a person within 90 calendar days of the person’s exercise of rights protected in this section shall be presumed to be retaliation; this presumption may be rebutted, but the burden of proof remains with the employer. In the case of seasonal employment that ended before the close of the 90 calendar day period, the presumption established by subsection 5 also applies if the employer fails to rehire a former employee at the next opportunity for work in the same position. The employer may rebut the presumption with clear and convincing evidence that the adverse action was taken for a bona fide business purpose.
The protections afforded under Section 12 shall apply to any person who mistakenly but in good faith alleges violations of this Article. A complaint or other communication by any person triggers the protections of this Section regardless of whether the complaint or communication is in writing or makes explicit reference to this Article.

Section 13. Severability

The provisions of this Article are severable. If any provision of this Article or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

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Frequently Asked Questions

Who benefits from Initiative 4?

Initiative 4 benefits workers and employers. The first part of the law institutes a fair scheduling law that will really help workers balance work and life. The second thing the law does is apply a hazard pay premium of $4/hour for workers who are working on-site during declared states of emergency that include Bellingham. This initiative is good for workers and employers, because workers who can anticipate their schedules and are treated with more fairness and transparency at work are far more likely to be satisfied with their work. This leads to a better workplace environment, and that leads to less turnover in staff, which is also better for businesses.

Why is this important?

Lower-wage workers are more likely to have variable work schedules, making it really difficult to coordinate other aspects of their life, such as childcare and schooling. Aside from basic rules like break times and overtime pay, there aren't a lot of guidelines or standards for how employers can create work schedules with workers in a just and sustainable way. This law institutes scheduling processes that are humane, fair, transparent for ALL workers – not just the few workers lucky enough to have great bosses; and creates more predictability for everyone. Low-wage workers have disproportionately worked in on-site jobs throughout this pandemic. Although there are a few exceptions, the vast majority of these workers have not been compensated for keeping our city running during the pandemic. We have to remedy that, and make sure it can’t happen again! People who make less money tend to incur higher costs for services, and have greater difficulty accessing what they need to be healthy and thriving during an emergency. Bellingham as a whole benefits when more workers are paid hazard pay and have additional spending power. Check out this article on how expensive it is to be poor in the U.S.. If you’d like to take your read up on this further, here are some more sources!

Will initiative 4 hurt small businesses?

This has been one of the most hotly and publicly debated aspects of Initiative 4. Businesses that have 30 or fewer employees are exempt after only 2 weeks of hazard pay after a state of emergency is declared. The vast majority of businesses in Bellingham have fewer than 30 employees. This is to say, the hazard pay initiative will likely apply to only 10% of Bellingham businesses. The best data on business size comes from the U.S. Census Bureau’s survey of County Business Practices. While no data is available on business sizes in Bellingham, it does provide data on businesses in Whatcom County, through 2018. Of the 6819 businesses in Whatcom County, more than 50% have 5 or fewer employees. 88% have 19 or fewer employees. Less than 12% of businesses have 20 or more employees; 562 of these falling between 20 and 50 employees. Some local business owners oppose initiative 4, and they have become the faces of a coordinated campaign against the initiative that has been full of disinformation and innuendo. This opposition campaign is actually being funded by giant corporations through a series of industry trade groups. For example, the Washington Hospitality Association has contributed $50,000 to oppose hazard pay for frontline workers. That’s no surprise, as this organization has repeatedly argued against common sense policies like COVID-related public health mandates. These corporations and industry groups care about the profits they return to shareholders, not Bellingham’s low-income workers.

What about small businesses that are already paying hazard pay?

While we’ll have to defer this one to the City’s legal team, our guess is that if an employer is already paying hazard pay to employees - as a premium, and not as an increased base wage, it’s likely that this amount of hazard pay would apply toward this initiatives’ $4/hour hazard pay premium. Why? Because it would not be lawful to require businesses to pay the full premium if they were already paying all or part of it. For example, if an employer has already been itemizing their employees’ paychecks with one line for the employee’s base hourly pay, and another separate line for the employee’s hazard pay premium, that means they’d already be fully or partially in compliance. Again, we have to emphasize that the City and its legal team will need to work all of these details out with employers, but our best guess is that if a business is already paying workers temporary hazard pay as hazard pay, and is calling it hazard pay on their workers’ pay stubs/time records very clearly, we think this is a pretty likely outcome.

What if I don’t want a set schedule?

Section 2.11 states that discussions between the employer and the employee around scheduling may include the proposal of alternatives by the employee and the employer. All workers deserve predictability in their scheduling, but if an employee would prefer to work a changing schedule, and their employer is also OK with that, they can. It certainly doesn’t restrict employees from negotiating a schedule that works for them. What it does do, is create the clear expectation that employers create scheduling processes that give workers advance notice of their schedules, and are open to input from workers on their schedules.

Will this raise my property taxes?

No. By law, local citizen initiatives in Bellingham cannot raise taxes.

Is the $4/hour hazard pay taxable income?

Yes.

I’ve heard that the hazard pay section of Initiative 4 is ambiguous or poorly written. Is this true?

The hazard pay section of Initiative 4 is very simple and straightforward. It is quoted in full below:

Section 10. Hazard Pay

If a State of Emergency is declared in any jurisdiction which includes the City of Bellingham, employers shall pay all on-site employees $4 per hour in hazard pay or its equivalent in a prorated salary premium.

Businesses with fewer than 30 employees, with the exception of franchises, will only be required to pay a maximum of 14 days of Hazard Pay under this Section per year.

The initiative is prefaced by a series of “WHEREAS” clauses that offer clear guidance as to the intent of the initiative, which is to ensure that workers exposed to hazards that have been declared a state of emergency, such as a respiratory pandemic, or other unknown future emergency, are compensated for the risks they face when they are required to work on-site in public-facing and aggregate settings.

What about nonprofit organizations?

Numerous Bellingham nonprofits provide services to vulnerable Bellingham residents and essential care to children and people in need of long-term health care. While these businesses do not distribute profits to shareholders (this is what makes them nonprofits), they are still employers. Non-profits with paid staff still have to pay payroll taxes, create and enforce work schedules, and are supposed to abide by wage and hour laws. Their employees deserve no less than any other working people in Bellingham. In fact, many nonprofits in Bellingham have a significant divide between the pay received by their executives and that received by many of their services providers. Many non-profit executives are paid far upwards of $80K per year, with direct service employees (full time 40hrs/week) often paid $24K or less per year. During the pandemic, executive and administrative employees were able to work remotely, while front-line service providers, like YMCA caregivers, front desk-workers, and custodial staff - whose jobs involved being on-site, continued to work in public-facing and group settings.. Many of these institutions have received large donations during the pandemic to help support their services; as well as other public funding under the American Rescue Plan Act that went directly toward subsidizing their costs.

Will I lose my job if Initiative 4 is passed?

Unsurprisingly, we’ve heard that some business owners are intimidating workers and arguing against this initiative by threatening layoffs. This is the same argument businesses have made in almost every fight to improve wage and hour laws over the past century! Although the people leading the resistance to wage laws are usually the bosses, they have often phrased the nature of their concerns in terms of their employees. One argument repeated in nearly every debate has been that higher wages will cause people to lose their jobs. For example, while wage increases can cause job losses under certain conditions, the evidence from studies of state-specific minimum wages has generally defied employers’ doom and gloom predictions. (This Bloomberg article provides a brief summary of some relevant research.) Instead, the overall impact of wage increases tends to produce higher wages for low-income workers and greater prosperity for affected communities. While hazard and general wage increases are very different, we want to clarify for voters that the arguments against both of them are really similar. Opponents of both higher wages and hazard pay – usually business owners, corporations, and PACs – refuse to acknowledge the real value that workers produce, yet expect those workers to create profit, even when it’s at great personal hazard or cost to their workers. That’s obviously not OK. While it’s true we’re still weathering this pandemic, vaccination levels continue to rise and booster shots will become available, as well as vaccinations for kids. It’s likely that we’re almost through this, and we don’t think businesses or non-profits will be paying hazard pay indefinitely! At the same time, the City of Bellingham’s hazard pay resolution left way too many workers behind, and that needs to be remedied for the remainder of this emergency, and for any future emergency that puts workers in danger.

How will compliance of Initiative 4 be enforced?

If this law is enacted by voters, the City has an obligation to offer guidance and implementation guidelines to Bellingham employers as to how to comply with the new law, just as it does with all new laws that enter the municipal code. This law will take effect within the context of broader state and federal employment laws. In other words, it will be up to the City of Bellingham to ensure that the law is interpreted and implemented correctly, fairly, and in good faith; both on the basis of the clearly stated intentions in the WHEREAS section of the initiative, as well as how it should function alongside other employment laws. Some examples of other laws that will work alongside this one are wage & hour laws - like overtime and required break times, family and medical leave laws, and laws governing safe workplaces, such as OSHA requirements. The other great thing about this initiative is that requiring employers to pay hazard pay to workers who have to be on-site during an emergency, means that it benefits businesses to take the health of their workers more seriously and really evaluate who actually needs to work on-site and be compensated for that, and who can do their job remotely and stay safe!

If there is a state-wide emergency declared, but it does not impact Bellingham, does hazard pay still go into effect? Why?

As the whereas clauses make clear, the intention of Initiative 4’s Section 10 is that it should apply to hazards that impact on-site employees who have to work in public-facing or aggregate settings. Employees who can work remotely are not the intended beneficiaries of the law. States of emergency are a way of signifying that a relevant hazard exists. If a statewide emergency impacts workers in Bellingham, hazard pay will apply.

Instead of Hazard Pay, can we just fix the wage gap at the local level?

We’d love to fix the wage gap! BUT, the reality is that every time any kind of wage increase is suggested, these same arguments have been mounted against it. We’ve been weathering a pandemic that took so many of us by surprise, especially in terms of the way it impacted front-line and essential workers. In bringing forth hazard pay in this initiative, we really wanted to think ahead, and be more prepared for the next unknown emergency that might impact workers. We know that with climate disasters and climate shift impacts on the rise, we’re likely to see emergencies that are unprecedented. Thus, the broadness of the hazard pay section: we think the city should have some leeway to exercise judgement as to the particulars of this law’s implementation, and we wanted it to be able to apply to any workers who were required to work on-site during a dangerous and emergency situation. In the case of covid, that was grocery workers, health workers, delivery and postal workers, production and food supply workers, utility workers... We can’t know for sure who the next emergency might affect, but we do know that workers who can work remotely/from home and don’t have to report to a job-site probably won’t be affected.

What is severability?

Severability means that one section of a law can be struck down (i.e. removed) by the courts without invalidating any other sections of the law. On the text of an actual law, removing a section or phrase ~~looks like this!~~ A line crosses out the part that has been removed. It’s not really that complicated!

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