Ordinance 3124CITY OF ALAMEDA ORDINANCE No. 3124
New Series
AMENDING THE ALAMEDA MUNICIPAL CODE BY ADDING
CHAPTER VI, ARTICLE XIII, SECTION 6 -56 TO IMPOSE
REQUIREMENTS RELATING TO THE RETENTION OF GROCERY
WORKERS IN CERTAIN CIRCUMSTANCES INVOLVING THE
TRANSFER OF OWNERSHIP OF LARGE GROCERY
ESTABLISHMENTS
WHEREAS, on February 3, 2015, the City Council passed a motion, based on a
referral, directing staff to draft and return to the City Council an ordinance, modeled after
the City of Los Angeles's Ordinance, to require a transitional workforce retention period
when there is a change of ownership, control, or operation of a large grocery store; and
WHEREAS, Los Angeles's Ordinance has been upheld by the California State
Supreme Court and since the passage of Los Angeles Ordinance, a number of other local
jurisdictions have passed similar measures; and
WHEREAS, supermarkets and other grocery retailers play a vital public health and
economic role in the community as they are the primary sources of fresh food, canned
and cartoned goods, and similar items; and
WHEREAS, supermarkets are anchors to Alameda's regional and neighborhood
shopping centers (such as Alameda Landing, South Shore Center, Marina Village
Shopping Center, Bridgeside Shopping Center, and Harbor Bay Landing Shopping
Center), providing the customer base and foot traffic to support adjacent stores and in
addition, supermarkets are also major employers in Alameda; and
WHEREAS, the general welfare of Alameda residents will be protected by keeping
in place experienced grocery workers with knowledge of proper sanitation procedures
and health regulations.
BE IT ORDAINED by the City Council of the City of Alameda:
Section 1. CHAPTER VI, ARTICLE XIII, SECTION 6 -56 is hereby added to the
Alameda Municipal Code as follows:
Article XIII. - GROCERY WORKER RETENTION
6 -56.1 — Purpose
6 -56.2 — Definitions
6 -56.3 — Grocery Employers' Responsibilities
6 -56.4 — Transition Employment Period
6 -56.5 — Notice to Public
6-56.6 — Enforcement
6-56.7 — Exemption for Collective Bargaining Agreement
6-56.8 — Coexistence with Other Available Relief for Specific Deprivations of
Protected Rights
6-56.9 — Severability
6-56.1 — Purpose.
Full—service grocery stores are the main points of distribution for food for the
residents of Alameda. The City has an interest in ensuring the welfare of its residents
through the maintenance of health and safety standards in full-service grocery stores.
Experienced grocery workers with knowledge of proper sanitation procedures, health
regulations, and understanding of the clientele they serve are instrumental in furthering
this interest. A transitional retention period upon change of ownership, control, or
operation of full-service grocery stores ensures stabilization of this vital workforce, which
results in preservation of health and safety standards. Through this ordinance, the City
seeks to maintain the stability of the full-service grocery workforce in Alameda.
6-56.2 — Definitions.
As used in this article:
City shall mean the City of Alameda.
Change in Control shall mean any sale, assignment, transfer, contribution, or other
disposition of all or substantially all of the assets or a controlling interest (including by
consolidation, merger, or reorganization) of the incumbent grocery employer or any
person who controls such incumbent grocery employer (IGE Parent") or any full-service
grocery store(s) under the operation or control of either such incumbent grocery employer
or IGE parent to the successor grocery employer. Change in control does not include an
incumbent grocery store, IGE parent, or grocery store that goes out of business.
Eligible Grocery Worker shall mean any individual whose primary place of
employment is at the full-service grocery store subject to a change in control, and who
has worked for the incumbent grocery employer for at least six months prior to the
execution of the transfer document. Eligible grocery worker does not include a
managerial, supervisory, or confidential employee.
Employment Commencement Date shall mean the date on which an eligible
grocery worker retained by the successor grocery employer pursuant to this chapter
commences work for the successor grocery employer in exchange for benefits and
compensation under the terms and conditions established by the successor grocery
employer and as required by law.
Full-Service Grocery Store shall mean a facility in the City of Alameda that is over
15,000 square feet in size and that sells to the general public primarily groceries,
vegetables, fruits, meats, poultry, fish, canned and cartoned goods, milk, juices, soft
drinks and similar items, and other food stuff for preparation and consumption off of the
premises, and toiletries and other items for personal or home use. For the purposes of
this ordinance, the term "primarily" shall refer to a full - service grocery store in which at
least fifty -one percent (51 %) of the floor space is devoted to grocery sales.
Incumbent Grocery Employer shall mean the person that owns, controls, and /or
operates the full - service grocery store prior to the change in control.
Person shall mean an individual, corporation, partnership, limited partnership,
limited liability partnership, limited liability company, business trust, estate, trust,
association, joint venture, agency, instrumentality, or any other legal or commercial entity,
whether domestic or foreign.
Retaliatory Action shall mean the failure to hire, or the discharge, suspension,
demotion, penalization, or discrimination or any other adverse action against an eligible
grocery employee with respect to the terms and conditions of the eligible grocery worker's
employment.
Successor Grocery Employer shall mean the person that owns, controls, and /or
operates the full - service grocery store after the change in control.
Transfer Document shall mean the purchase agreement or other document(s)
effecting the change in control.
6 -56.3 — Grocery Employers' Responsibilities.
a. The incumbent grocery employer shall, within fifteen days after the execution of the
transfer document, provide to the successor grocery employer the name, address,
date of hire, and employment occupation classification of each eligible grocery worker.
b. The successor grocery employer shall maintain a preferential hiring list of eligible
grocery workers identified by the incumbent grocery employer as set forth in
subsection a. of this section and shall be required to hire from that list for a period
beginning upon the execution of the transfer document and continuing for ninety days
after the full - service grocery store is fully operational and open to the public under the
successor grocery employer.
c. If the successor grocery employer extends an offer of employment to an eligible
grocery worker, the successor grocery employer shall retain written verification of that
offer for no fewer than three years from the date the offer was made. The verification
shall include the name, address, date of hire, and employment occupation
classification of each eligible grocery worker.
6 -56.4 — Transition Employment Period.
a. A successor grocery employer shall retain each eligible grocery worker hired
pursuant to this article for no fewer than ninety days following the eligible grocery
worker's employment commencement date. During this ninety -day transition
employment period, eligible grocery workers shall be employed under the terms
and conditions established by the successor grocery employer, as required by law
and pursuant to the terms of a relevant collective bargaining agreement, if any.
b. If within the period established in section 6- 56.3(b) the successor grocery employer
determines that it requires fewer eligible grocery workers than were required by
the incumbent grocery employer, the successor grocery employer shall retain
eligible grocery workers by seniority within each job classification to the extent that
comparable job classifications exist or pursuant to the terms of a relevant collective
bargaining agreement, if any. Non - classified eligible grocery workers shall be
retained by seniority and according to experience or pursuant to the terms of a
relevant collective bargaining agreement, if any.
c. During the ninety -day transition employment period, the successor grocery
employer shall not discharge, without cause, an eligible grocery worker retained
pursuant to this chapter.
d. At the end of the ninety -day transition employment period, the successor grocery
employer shall perform a written performance evaluation for each eligible grocery
worker retained pursuant to this chapter. If the eligible grocery worker's
performance during the ninety -day transition employment period is satisfactory,
the successor grocery employer shall consider offering the eligible grocery worker
continued employment under the terms and conditions established by the
successor grocery employer and as required by law. The successor grocery
employer shall retain a record of the written performance evaluation for a period of
no fewer than three years.
6 -56.5 — Notice to Public.
a. The incumbent grocery employer shall post public notice of the change in control
at the location of the affected full - service grocery store within five business days
following the execution of the transfer document. Notice shall remain posted
during any closure of the full - service grocery store and until the full - service grocery
store is fully operational and open to the public under the successor grocery
employer.
b. Notice shall include, but not be limited to, the name of the incumbent grocery
employer and its contact information, the name of the successor grocery employer
and its contact information, and the effective date of the change in control.
c. Notice shall be posted in a conspicuous place at the full - service grocery store so
as to be readily viewed by eligible grocery workers and other employees,
customers, and members of the public.
6 -56.6 — Enforcement.
a. Eligible grocery workers may bring an action in the Superior Court of the State
of California, as appropriate, against the incumbent grocery employer or the
successor grocery employer for violations of this chapter and may be awarded:
1. Hiring and reinstatement rights pursuant to this chapter, whereupon the
ninety -day transition employment period shall not commence until the eligible
grocery worker's employment commencement date with the successor
grocery employer.
2. Front pay or back pay for each day during which the violation continues, which
shall be calculated at a rate of compensation not less than the higher of:
i. The average regular rate of pay received by the eligible grocery worker
during the last three years of the eligible grocery worker's employment
in the same occupation classification; or
ii. The most recent regular rate received by the eligible grocery worker
while employed by either the incumbent grocery employer or the
successor grocery employer.
3. Value of the benefits the eligible grocery worker would have received under
the successor grocery employer's benefit plan.
b. If the eligible grocery worker is the prevailing party in any legal action taken
pursuant to this section, the court shall award reasonable attorney's fees and
costs as part of the costs recoverable.
6 -56.7 — Exemption for Collective Bargaining Agreement.
Parties subject to this article may, by collective bargaining agreement, provide that the
agreement supersedes the requirements of this article.
6 -56.8 — Coexistence with Other Available Relief for Specific Deprivations of
Protected Rights.
This article shall not be construed to limit an eligible grocery worker's right to bring legal
action for wrongful termination.
6 -56.9 — Severability.
If any provision of this article is found or held to be invalid by a court of competent
jurisdiction, the remaining provisions shall remain in full force and effect.
Section 2. This Ordinance shall be in full force and effect from and after the expiration of
thirty (30) days from the date of its final passage.
Section 3. Severability Clause: It is the declared intent of the City Council that if any
section, subsection, sentence, clause, phrase, or provision of this Ordinance is held
invalid or unconstitutional by a court of competent jurisdiction, such invalidity or
unconstitutionality shall not be so construed as to render invalid or unconstitutional the
remaining provisions of this Ordinance.
Attest:
(,' aAe-�' C/\1
Lara Weisiger, City C9 k
Presiding Officer of the Council
1, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by Council of the City of Alameda in regular meeting
assembled on the 5th day of May, 2015 by the following vote to wit:
AYES: Councilmembers Daysog, Ezzy Ashcraft, Matarrese, Oddie and
Mayor Spencer — 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official
seal of said City this 6th day of May, 2015.
Lara Weisiger, City rk
City of Alameda
APPROVED AS TO FORM:
Janet Kern
City Attorney