HomeMy WebLinkAboutTukwila Municipal Code Relating to Minimum Wage InitiativeTITLE 5 — BUSINESS LICENSES AND REGULATIONS
4. The license holder, his or her employee, agent,
partner, director, officer or manager has knowingly violated any
provisions of any chapter of the Tukwila Municipal Code, or has
knowingly permitted, failed to prevent, or has otherwise allowed a
violation of any of the provisions of any chapter of the Tukwila
Municipal Code to occur on his or her business premises.
5. The license holder, his or her employee, agent,
partner, director, officer or manager has repeatedly violated any
provision of City policies or the Tukwila Municipal Code after
having received notice of such violation.
6. Conduct of the business would be in violation of any
local, state orfederal law, rule or regulation prohibiting the conduct
of that type of business.
7. The property at which the business is located has
been determined by a court to be a chronic nuisance property, a
Violation Notice and Order for a chronic nuisance property has
been issued and not timely remedied or appealed, or the Hearing
Examiner has determined the property to be a chronic nuisance
property, as provided in TMC Chapter 8.27.
C. Upon determination that grounds for denial, suspension
or revocation of a license exist, the Finance Director shall send the
applicant or license holder a Notice of Denial, Suspension or
Revocation. The Notice of Denial, Suspension or Revocation shall
set forth the grounds for and terms of the denial, suspension or
revocation, and a statement advising the applicant or license
holder that he/she may appeal the Notice of Denial, Suspension
or Revocation in accordance with the provisions of TMC Section
5.04.112. The filing of such appeal shall stay the action of the
Finance Director pending decision on the appeal by the City
Hearing Examiner or other hearing body pursuant to TMC Section
5.04.112.
D. Receipt of the Notice of Denial, Suspension or
Revocation. The Notice of Denial, Suspension or Revocation
shall ba (1) sent to the applicant or license holder by registered
mail at the address provided on the license application, (2) hand
delivered to the address provided on the license application, or (3)
posted upon the premises where such applicant or license holder
conducts the business that is the subject of the denied, suspended
or revoked license. Notice shall be deemed received by the
applicant or license holder upon posting, hand delivery, or 3
business days after mailing, whichever occurs first.
(Ord. 2588 §9, 2018; Ord. 2496 §5, 2016; Ord. 2352 §2, 2011;
Ord. 2333 §8, 2011; Ord. 2315 §1 (part), 2010)
5.04.112 Appeal of Notice of Denial, Suspension or
Revocation
A. The applicant or license holder may appeal the decision
of the Finance Director to suspend, deny or revoke a business
license by filing a written notice of appeal to the City Clerk within
10 calendar days following receipt of the Notice of Denial,
Suspension or Revocation. The notice of appeal must state the
grounds for appeal, including a detailed explanation of why the
decision to suspend, deny or revoke was incorrect. The notice of
appeal must be accompanied by an Appeal Fee in accordance
with the fee schedule adopted by resolution of the City Council. A
timely notice of appeal shall stay the effect of the notice of non -
issuance until the City's Hearing Examiner or other hearing body
issues a written decision on the appeal.
B. Upon timely filing of a notice of appeal, the Finance
Director shall schedule a hearing on the appeal before the City's
Hearing Examiner. The hearing shall be conducted no later than
30 days from the date of the notice of appeal, unless an extension
is agreed to by the appellant or otherwise ordered by the Hearing
Examiner for good cause shown. Notice of the hearing will be
mailed to the applicant or licensee.
C. The hearing shall be de novo. The decision of the City's
Hearing Examiner or other hearing body shall be based upon a
preponderance of the evidence. The burden of proof shall be on the
appellant. The Hearing Examiner or other hearing body may affirm,
reverse or modify the Finance Director's decision.
D. Within 20 business days, excluding holidays recognized
by the City of Tukwila, from the date of the hearing on an appeal
under this section, the Hearing Examiner shall issue a written
decision which shall set forth the reasons therefor.
(Ord. 2496 §6, 2016; Ord. 2381 §6, 2012; Ord. 2333 §9, 2011;
Ord. 2315 §1 (part), 2010)
5.04.113 Violations of Minimum Wage and Fair
Access to Additional Hours Regulations
A. The Finance Director may deny, suspend, or revoke any
license under this chapter for violation of TMC Chapter 5.63.
B. The Finance Director must deny, suspend, or revoke any
license under this chapter for repeated intentional violations of
TMC Chapter 5.63.
C. 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.
(initiative Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.04.115 Penalties
Any violation of this chapter, or failure to comply with any of
the requirements of this chapter, shall be subject to enforcement
and penalties as prescribed in TMC Chapter 8.45 and the
issuance of a Notice of Violation in accordance with TMC Section
8.45.070.
(Ord. 2549 §2, 2017; Ord. 2315 §1 (part), 2010)
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TITLE 5 — BUSINESS LICENSES AND REGULATIONS
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LABOR STANDARDS FOR CERTAIN
EMPLOYEES
Sections:
Retaliation Prohibited
5.63.010
Findings
5.63.020
Definitions
5.63.030
Intent
5.63.040 Large Employers Shall Pay Minimum Wages
Comparable to Those in Neighboring Cities
5.63.050 Other Covered Employers Shall Have a Multiyear
Phase -In Period
5.63.060 Coverage and Employer Classifications
5.63.070 Part -Time Employees Shall Have Fair Access to
Additional Hours
5.63.080
Retaliation Prohibited
5.63.090
Enforcement
5.63.100
Other Legal Requirements
5.63.110
Rulemaking
5.63.120
Constitutional Subject
5.63.130
Severability
5.63.010 Findings
A. 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.
B. 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.
C. 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.
D. 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.
E. Tukwila's neighboring cities of SeaTac and Seattle
enacted higher minimum wages in 2013 and 2014, but until now
Tukwila has not followed suit.
(Initiative Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.63.020 Definitions
For purposes of this chapter, the following words or phrases
shall have the meaning prescribed as follows:
A. "City" means the City of Tukwila.
B. "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.
C. "Effective date" is the effective date of this ordinance'.
D. "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.
E. "Employer' is defined as set forth in RCW 49.46.010.
F. "Employer classification" includes the determination of
whether an employer is a covered employer and whether a
covered employer is a large employer.
G. "Franchise" means an agreement, express or implied,
oral or written, by which:
1. A person is granted the right to engage in the
business of offering, selling, or distributing goods or services
under a marketing plan prescribed or suggested insubstantial 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.
H. "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.
I. "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.
J. "Other covered employer' means a covered employer
that does not qualify as a large employer.
K. "Service charge" is defined as set forth in RCW
49.46.160(2)(c).
L. "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.
M. "Wage" is defined as set forth in RCW 49.46.010.
(Initiative Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
'"This ordinance" references Initiative Measure No. 1, as approved by voters and certified by King County Elections on November 29, 2022
Produced by the City of Tukwila, City Clerk's Office Page 5-43
TITLE 5 — BUSINESS LICENSES AND REGULATIONS
5.63.030 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.
(Initia6ve Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.63.040 Large Employers Shall Pay Minimum Wages
Comparable to Those in Neighboring Cities
A. Effective July 1, 2023, every large 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 7.45.060, adjusted for 2023 by the annual
rate of inflation.
B. 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.
C. 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.
D 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, for the
12 -month period ending in August, provided that the percentage
increase shall not be less than zero.
E. An employer must pay to its employees:
1. All tips and gratuities, and
2. 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.
(Initia6ve Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.63.050 Other Covered Employers Shall Have a
Multiyear Phase -In Period
Other covered employers shall phase in the new minimum
wage, as follows:
A. Effective July 1, 2023, other covered employers shall pay
employees not less than the hourly minimum wage established
under TMC Section 5.63.040 minus Two Dollars ($2) per hour.
B. Effective July 1, 2024, other covered employers shall pay
employees not less than the hourly minimum wage established
under TMC Section 5.63.040 minus One Dollar ($1) per hour.
C. Effective July 1, 2025, and thereafter, all covered
employers shall pay employees not less than the hourly minimum
wage established under TMC Section 5.63.040.
(Initia6ve Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.63.060 Coverage and Employer Classifications
A. Covered employers must pay employees at least the
minimum wage established by this chapter for each hour worked
within the City.
B. Employer classification for the 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.
C. Employer classification for the current calendar year will
be calculated based upon the gross revenue for the 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.
D. 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
those entities or a separate entity. The factors to consider in
making this assessment include, but are not limited to:
1. Degree of interrelation between the operations of
multiple entities,
2. Degree to which the entities share common
management;
3. Centralized control of labor relations; and
4. Degree of common ownership or financial control
over the entities.
(Initia6ve Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
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TITLE 5 — BUSINESS LICENSES AND REGULATIONS
5.63.070 Part -Time Employees Shall Have Fair
Access to Additional Hours
A. 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.
B. 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.
(Initiative Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.63.080 Retaliation Prohibited
A. No employer or any other person shall interfere with,
restrain, or deny the exercise of, or the attempt to exercise, any
right protected under this chapter.
B. No employer or any other person shall take any adverse
action against any person because the person has exercised in
goodfaith 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
under this chapter, 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 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 under this chapter.
C. 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 a false 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 hours, responsibilities, or other material change in the terms
and conditions of employment.
D. No employer or any other person shall communicate to a
person exercising rights protected under this 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.
E. 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 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 permissible purpose.
F. 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.
G. The protections afforded under this section shall
apply to any person who mistakenly but in good faith alleges
violations of this chapter.
(Initiative Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.63.090 Enforcement
A. 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 under this 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 higher
of twelve percent per annum or the maximum rate permitted under
RCW 19.52.020.
B. 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:
1. Are, or were, employed by the same employer or
employers, whether concurrently or otherwise, at some point
during the applicable statute of limitations period,
2. Allege one or more violations that raise similar
questions as to liability, and
3. Seek similar forms of relief.
4. Employees shall not be considered dissimilar solely
because their claims seek damages that differ in amount, or their
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TITLE 5 — BUSINESS LICENSES AND REGULATIONS
job titles or other means of classifying employees differ in ways
that are unrelated to their claims.
C. 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.
D. 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.
E. 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.
F. The City has the authority to issue administrative
citations and to order injunctive relief including reinstatement,
restitution, payment of back wages, or other forms of relief.
G. 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.
H. The remedies and penalties provided under this 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.
I. The statute of limitations for any enforcement action shall
be five (5) years.
(Initiative Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.63.100 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.
(Initiative Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.63.110 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.
(Initiative Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.63.120 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).
(Initiative Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
5.63.130 Severability
The provisions of this chapter are declared to be separate and
severable. If any clause, sentence, paragraph, subdivision,
section, subsection, or portion of this chapter, or the application
thereof to any employer, employee, or circumstance, is held to be
invalid, it shall not affect the validity of the remainder of this
chapter, or the validity of its application to other persons or
circumstances.
(Initiative Measure No. 1, Adopted 2022
Certified by King County Elections on November 29, 2022)
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