HomeMy WebLinkAboutRes 2049 - Special Election for Ordinance Entitled "Ordinance Concerning Labor Standards for Certain Employees" (Minimum Wage Petition)Washington
Resolution No. 2 CD ti
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, CALLING FOR A SPECIAL ELECTION
TO BE HELD CONCURRENT WITH THE GENERAL ELECTION OF
NOVEMBER 8, 2022, TO PLACE BEFORE THE QUALIFIED
ELECTORS OF THE CITY THE PROPOSITION OF WHETHER AN
ORDINANCE ENTITLED "ORDINANCE CONCERNING LABOR
STANDARDS FOR CERTAIN EMPLOYEES" BE ADOPTED.
WHEREAS, an initiative petition requesting that the City Council adopt an ordinance
entitled "An Ordinance Concerning Labor Standards for Certain Employees" has been
submitted to the City (attached hereto as Exhibit A); and
WHEREAS, the King County Department of Elections verified the number and
correctness of signatures on the petition and issueda Certificate of Sufficiency dated June
28, 2022; and
WHEREAS, the City Council has decided to defer the proposal to the voters;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
Section 1. The City Council finds it necessary to call a special election to be held in
the City of Tukwila at the time of the General Election of November 8, 2022, on the
proposition of whether an ordinance entitled "An Ordinance Concerning Labor Standards
for Certain Employees" should be adopted.
Section 2. The City of Tukwila hereby calls for an election on November 8, 2022, to
place before the qualified electors of the City the following proposition:
Ballot Title:
Proposition No. 1
City of Tukwila Proposition No. 1 concerns labor standards for certain
employees.
This Ordinance requires certain employers, as defined by the ordinance, to
pay employees an hourly minimum wage comparable to equivalent
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employees in the city of SeaTac and adjusted annually for inflation. Tips and
qualifying service charges shall be retained by employees and may not count
toward the hourly minimum wage. Additionally, covered employers must
offer additional hours of work to existing employees before hiring new
employees or subcontractors.
Should this Ordinance be enacted into law?
YES
NO
Section 3. The City Clerk or designee is authorized and directed to file a copy of this
resolution with the King Cou nty Department of Elections no laterthan 4:30 p.m. on August
2, 2022.
Section 4. Pursuant to RCW 29A.32.280 the names of committee members
appointed by the City Council to prepare arguments advocating both approval and
rejection of the measure shall be provided to the Director no laterth an 4:30 p.m. on August
2, 2022.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at
a Regular Meeting thereof this / pi- day of dot] , 2022.
ATTEST/AUTHENTICATED:
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Oaarte/tey
Koys 7fP.,01,1,daleedOceicaGfrirMe3a,
Christy O'Flaherty, MMC, City Clerk
APPROVED AS TO FORM BY:
ffice of the City Attorney
Thomas McLeod, Council President
Filed with the City Clerk:
Passed by the City Council: 1-f--2-'2--
Resolution Number: Z01-19
Attachment: Exhibit A, "An Ordinance Concerning Labor Standards for Certain Employees"
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LH:bjs Review and analysis by Barbara Saxton
Page 2 of 2
AN ORDINANCE concerning labor standards for certain employees.
Section 1. Findings.
1. The people of the City of Tukwila hereby adopt this citizen initiative addressing labor
standards for certain employees, for the purpose of ensuring that, to the extent
reasonably practicable, people employed in Tukwila have good wages and access to
sufficient hours of work.
2. The City of Tukwila is one of largest job centers in Washington State, including
thousands of retail and food service jobs at and around the Westfield Southcenter Mall.
Wages and working conditions in Tukwila contribute to setting the standard for the entire
region.
3. The statewide minimum wage is not sufficient to afford rising rents and costs of living in
Washington State. According to the National Low Income Housing Coalition's Out of
Reach 2021 report, a worker making Washington's minimum wage would have to work
70 hours each week to afford a modest one -bedroom rental home at Fair Market Rent.
4. When working families earn insufficient income due to low wages and involuntary under-
employment, they struggle to pay for basic necessities like health care, child care, and
groceries, and they are more likely to be evicted and become homeless.
5. Tukwila's neighboring cities of SeaTac and Seattle enacted higher minimum wages in
2013 and 2014, but until now Tukwila has notfollowed suit.
Section 2. Intent.
It is the intent of the people to establish fair labor standards and protect the rights of workers by:
(1) ensuring that the vast majority of employees in the City of Tukwila receive a minimum wage
comparable to employees in neighboring cities of SeaTac and Seattle; (2) requiring covered
employers to offer additional hours of work to qualified part-time employees before hiring new
employees to fill those hours; and (3) adopting enforcement requirements.
Section 3. Large Employers Shall Pay Minimum Wages Comparable to Those in
Neighboring Cities.
1. Effective July 1, 2023, every Targe employer shall pay to each employee an hourly
wage of not less than the 2022 "living wage rate" in the City of SeaTac, established
pursuant to SeaTac Municipal Code Section 7.45.050, adjusted for 2023 by the annual
rate of inflation.
2. On January 1, 2024, and on each January 1 thereafter, the hourly minimum wage shall
increase by the annual rate of inflation to maintain employee purchasing power.
3. By December 31, 2022, and by October 15 of each year thereafter, the Finance
Department shall establish and publish the applicable hourly minimum wage for the
following year using the annual rate of inflation.
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4. For purposes of this chapter, the annual rate of inflation means 100 percent of the
annual average growth rate of the bi-monthly Seattle -Tacoma -Bellevue Area Consumer
Price Index for Urban Wage Earners and Clerical Workers, termed CPI -W, forthe 12 -
month period ending in August, provided that the percentage increase shall not be less
than zero.
5. An employer must pay to its employees:
a. All tips and gratuities; and
b. All service charges as defined under RCW 49.46.160 except those that, pursuant
to RCW 49.46.160, are itemized as not being payable to the employee or
employees servicing the customer.
Tips and service charges paid to an employee are in addition to, and may not count
towards, the employee's hourly minimum wage.
Section 4. Other Covered Employers Shall Have a Multiyear Phase -In Period.
Other covered employers shall phase in the new minimum wage, as follows:
1. Effective July 1, 2023, other covered employers shall pay employees not less than the
hourly minimum wage established under Section 3 minus Two Dollars ($2) per hour.
2. Effective July 1, 2024, other covered employers shall pay employees not less than the
hourly minimum wage established under Section 3 minus One Dollar($1) per hour.
3. Effective July 1, 2025, and thereafter, all covered employers shall pay employees not
less than the hourly minimum wage established under Section 3.
Section 5. Coverage and Employer Classifications.
1. Covered employers must pay employees at least the minimum wage established by this
chapter for each hour worked within the City.
2. Employer classification forthe current calendar year will be calculated based upon the
average number of employees during all weeks in the previous calendar year in which
the employer had at least one employee. For employers that did not have any employees
during the previous calendar year, classification will be based upon the average number
of employees during the most recent three months of the current year. In this
determination, all employees will be counted, regardless of their location, and including
employees who worked in full-time employment, part-time employment, joint
employment, temporary employment, or through the services of a temporary services or
staffing agency or similar entity.
3. Employer classification forthe current calendar year will be calculated based upon the
gross revenue forthe previous year. For employers that did not have gross revenue
during the previous calendar year, annual gross revenue will be calculated from the gross
revenue during the most recent three months of the current year.
4. For the purposes of employer classification, separate entities will be considered a single
employer if they form an integrated enterprise or they are under joint control by one of
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those entities or a separate entity. The factors to consider in making this assessment
include, but are not limited to:
a. Degree of interrelation between the operations of multiple entities;
b. Degree to which the entities share common management;
c. Centralized control of labor relations; and
d. Degree of common ownership orfinancial control over the entities.
Section 6. Part -Time Employees Shall Have Fair Access to Additional Hours.
1. Before hiring additional employees or subcontractors, including hiring through the use of
temporary services or staffing agencies, covered employers must offer additional hours of
work to existing employees who, in the employer's good faith and reasonable judgment,
have the skills and experience to perform the work, and shall use a reasonable,
transparent, and nondiscriminatory process to distribute the hours of work among those
existing employees.
2. This section shall not be construed to require any employer to offer an employee work
hours if the employer would be required to compensate the employee at time -and -a -half
or other premium rate under any law or collective bargaining agreement, nor to prohibit
any employer from offering such work hours.
Section 7. Retaliation Prohibited.
1. No employer or any other person shall interfere with, restrain, ordeny the exercise of, or
the attempt to exercise, any right protected underthis chapter.
2. No employer or any other person shall take any adverse action against any person
because the person has exercised in good faith the rights underthis chapter. Such rights
include but are not limited to the right to make inquiries about the rights protected under
this chapter; the right to inform others about their rights underth is chapter; the right to
inform the person's employer, union, or similar organization, and/orthe person's legal
counsel or any other person about an alleged violation of this chapter; the right to bring a
civil action for an alleged violation of this chapter; the right to testify in a proceeding under
or related to this chapter; 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 underthis chapter.
3. For the purposes of this section, an adverse action means denying a job or promotion,
demoting, terminating, failing to rehire after a seasonal interruption of work, threatening,
penalizing, retaliating, engaging in unfair immigration -related practices, filing afalse
report with a government agency, changing an employee's status to nonemployee,
decreasing or declining to provide additional work hours when they otherwise would have
been offered, scheduling an employee for hours outside of their availability, or otherwise
discriminating against any person for any reason prohibited by this chapter. "Adverse
action" for an employee may involve any aspect of employment, including pay, work
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hours, responsibilities, or other material change in the terms and conditions of
employment.
4. No employer or any other person shall communicate to a person exercising rights
protected underthis chapter, 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 the person or a family member of the person to a federal, state, or
local agency because the person has exercised a right under this chapter.
5. It shall be a rebuttable presumption of retaliation if an employer or any other person takes
an adverse action against a person within 90 days of the person's exercise of any right
protected in this chapter. However, in the case of seasonal work that ended before the
close of the 90 -day period, the presumption also applies if the employer fails to rehire a
former employee at the next opportu n ity for work in the same position. The employer may
rebut the presumption with clear and convincing evidence thatthe adverse action was
taken fora permissible purpose.
6. Standard of Proof. Proof of retaliation under this chapter shall be sufficient upon a
showing that an employer or any other person has taken an adverse action against a
person and the person's exercise of rights protected in this chapter was a motivating
factor in the adverse action, unless the employer can prove that the action would have
been taken in the absence of such protected activity.
7. The protections afforded under this section shall apply to any person who mistakenly but
in good faith alleges violations of this chapter.
Section 8. Enforcement.
1. Any person or class of persons that suffers financial injury as a result of a violation of this
chapter or is the subject of prohibited retaliation underthis chapter, or any other individual
or entity acting on their behalf, 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 attorney fees and costs and such legal or equitable relief as may be
appropriate to remedy the violation including, without limitation, the payment of any unpaid
wages plus interest due to the person and liquidated damages in an additional amount of
up to twice the unpaid wages; compensatory damages; and a penalty payable to any
aggrieved party of up to $5,000 if the aggrieved party was subject to prohibited retaliation.
For the purposes of this section, an aggrieved party means an employee or other person
who suffers tangible or intangible harm due to an employer or other person's violation of
this chapter. Interest shall accrue from the date the unpaid wages were first due at the
higherof twelve percent per annum orthe maximu m rate permitted under RCW 19.52.020.
2. For purposes of determining membership within a class of persons entitled to bring an
action under this section, two or more employees are similarly situated if they:
a. Are or were employed by the same employer or employers, whether concurrently or
otherwise, at some point du ring the applicable statute of limitations period;
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b. Allege one or more violations that raise similar questions as to liability; and
c. Seek similar forms of relief.
d. Employees shall not be considered dissimilar solely because their claims seek
damages that differ in amount, or their job titles or other means of classifying
employees differ in ways that are unrelated to their claims.
3. Each covered employer shall retain records as required by RCW 49.46.070, as well as
such information as the City may require to confirm compliance with this chapter. If an
employer fails to retain such records, there shall be a presumption, rebuttable by clear
and convincing evidence, that the employer violated this chapter for the periods and for
each employee for whom records were not retained.
4. Employers shall permit authorized City representatives access to work sites and relevant
records for the purpose of monitoring compliance with the chapter and investigating
complaints of noncompliance, including production for inspection and copying of
employment records. The City may designate representatives, including city contractors
and representatives of unions or worker advocacy organizations, to access the worksite
and relevant records.
5. Complaints that any provision of this chapter has been violated may also be presented to
the City Attorney, who is hereby authorized to investigate and, if they deem appropriate,
initiate legal or other action to remedy any violation of this chapter.
6. The City has the authority to issue administrative citations and to order injunctive relief
including reinstatement, restitution, payment of back wages, or otherforms of relief.
7. The City may, in the exercise of its authority and performance of its functions and
services, agree by contract or otherwise to participate jointly or in cooperation with
Washington State, King County, or any city, town, or other incorporated place, or
subdivision thereof, or engage outside counsel, to enforce this chapter.
8. The remedies and penalties provided underthis chapter are cumulative and are not
intended to be exclusive of any other available remedies or penalties, including existing
remedies for enforcement of Tukwila Municipal Code chapters.
9. The statute of limitations for any enforcement action shall be five (5) years.
Section 9. A new section is added to TMC Chapter 5.04 as follows:
1. The Finance Director may deny, suspend, or revoke any license underthis chapterfor
violation of this ordinance.
2. The Finance Director must deny, suspend, or revoke any license underthis chapterfor
repeated intentional violations of this ordinance.
3. Any action by the Finance Director under this section shall be subject to the procedures
and requirements of TMC subsections 5.04.110.0 and 5.04.110.D and Section 5.04.112,
as well as other due process rights that a court may require.
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Section 10. Definitions.
For the purposes of this chapter, the following terms shall have the following meanings:
"City" means the City of Tukwila.
"Covered employer" means an employer that either (1) employs at least 15
employees regardless of where those employees are employed, or (2) has
annual gross revenue over$2 million.
"Effective date" is the effective date of this ordinance.
"Employee" is defined as set forth in RCW 49.46.010. An employer bears the
burden of proof that the individual is, as a matter of economic reality, in
business for oneself rather than dependent upon the alleged employer.
"Employer" is defined as set forth in RCW 49.46.010.
"Employer classification" includes the determination of whether an employer is a covered
employer and whethera covered employer is a large employer.
"Franchise" means an agreement, express or implied, oral or written by which:
1. A person is granted the rightto engage in the business of offering, selling, or
distributing goods or services undera marketing plan prescribed or suggested in
substantial part by the grantor or its affiliate;
2. The operation of the business is substantially associated with a trademark, service
mark, trade name, advertising, or other commercial symbol; designating, owned by, or
licensed by the grantor or its affiliate; and
3.The person pays, agrees to pay, or is required to pay, directly or indirectly, a franchise
fee. The term, "franchise fee" is meant to be construed broadly to include any instance in
which the grantor or its affiliate derives income or profit from a person who enters into a
franchise agreement with the grantor.
"Hour worked within the City" is to be interpreted according to its ordinary meaning, including all
hours worked within the geographic boundaries of the City, excluding time spent in the City
solely for the purpose of travelling through the City from a point of origin outside the City to a
destination outside the City, with no employment-related or commercial stops in the City except
for refueling or the employee's personal meals or errands.
"Large Employer" means all employers that employ more than 500 employees, regardless of
where those employees are employed, and all franchisees associated with a franchisor or a
network of franchises with franchisees that employ more than 500 employees in aggregate.
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"Other covered employer" means a covered employer that does not qualify as a large
employer.
"Service charge" is defined as set forth in RCW 49.46.160(2)(c).
"Tips" means a verifiable sum to be presented by a customer as a gift or
gratuity in recognition of some service performed for the customer by the
employee receiving the tip.
"Wage" is defined as set forth in RCW 49.46.010.
Section 11. Other Legal Requirements.
This ordinance 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 wages or
compensation; and nothing in this ordinance shall be interpreted or applied so as to create any
power or duty in conflict with federal or state law.
Section 12. Rulemaking.
Within 180 days after the effective date, the City shall adopt rules and procedures to implement
and ensure compliance with this chapter, which shall require employers to maintain adequate
records and to annually certify compliance with this chapter. The City shall seek feedback from
worker organizations and covered employers before finalizing the rules and procedures.
Section 13. Constitutional Subject.
For constitutional purposes, this measure's subject "concerns labor standards for certain
employers." See Filo Foods, LLC v. City of SeaTac, 183 Wash. 2d 770, 783, 357 P.3d 1040,
1047 (2015) (upholding this statement of subject for an initiative that set a minimum wage and
addressed employees' access to hours).
Section 14. Codification. All sections of this ordinance except section 9 shall be codified in a
new chapter of the Tukwila Municipal Code.
Section 15. Election date. In the event that the election on this measure takes place later than
November 8, 2022, the Finance Department must establish and publish the initial minimum
wage within 30 days of the effective date.
Section 16. Severability. The provisions of this ordinance are declared to be separate and
severable. If any clause, sentence, paragraph, subdivision, section, subsection, or portion of this
ordinance, or the application thereof to any employer, employee, or circumstance, is held to be
invalid, it shall not affectthe validity of the remainder of this ordinance, or the validity of its
application to other persons or circumstances.
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