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#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

  1. 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.

  2. 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

  1. “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.

  2. “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.

  3. “At time of hire” means the period after offer and acceptance of employment, and on or before the commencement of employment.

  4. “Bona fide business reason” means a reason that has a substantial relation to the achievement of a legitimate business objective.

  5. “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.

  6. “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.

  7. “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.

  8. “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.

  9. “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.

  10. “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”).

  11. “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.

  12. “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.

  13. “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.

  14. “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.

  15. “Franchise” means a business whereby the owner licenses its operations—along with its products, branding and knowledge—in exchange for a franchise fee.

  16. “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.

  17. “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.

  18. “Scheduled rate of pay” means the hourly rate that the employee is entitled to earn for an hour worked in a particular work shift.

  19. “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.

  20. “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.

  21. “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.

  22. “Work shift” means the specific and consecutive hours the employer requires the employee to work or to be on call to work.

  23. “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.

  24. “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.

  25. “Year” means any fixed, consecutive 12 month period of time.

Section 3. Good faith estimate of work schedule

  1. 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.

  2. 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.

  3. 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.

  4. 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

  1. 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.

  2. 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

  1. 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.

  2. 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.

  3. 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

  1. 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.

  2. 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.

  3. The written work schedule shall include all regular and on-call shifts for the work period.

  4. 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

  1. 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.

  2. 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

  1. 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.

  2. 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.
  3. 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.

  4. 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

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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

  1. 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.

  2. 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

  1. The City shall create and distribute a poster giving notice of the rights afforded by this Article 10.

  2. 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

  1. Employers have an affirmative burden to demonstrate compliance with Article 10. Failure to retain records that demonstrate compliance will be construed against employers.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.