Marin
Interfaith Worker Justice Comment:
We propose replacing the current, flawed
Marin County Living Wage Ordinance with the language below. Under this proposed
ordinance, homecare workers would be treated exactly the same as other workers
covered by Marin’s Living Wage Ordinance. Substantive changes are summarized in
“Summary of Substantive Issues: Proposed Substitute Living Wage Ordinance for
Marin County.”
ORDINANCE
No. ____
ORDINANCE
OF THE MARIN COUNTY BOARD OF SUPERVISORS TO CLARIFY AND REVISE MARIN LIVING
WAGE ORDINANCE
WHEREAS, the existing Living Wage Ordinance requires clarification, as it
contains certain provisions which expire at the end of the year, and it
contains a limit on the amount of County investigation costs recoverable from a
violator which is no longer realistic given the likely costs of most investigations;
WHEREAS, the existing Ordinance contained
language which could have been construed to protect any employee who alleges a
violation from being discharged even if such discharge was not for retaliatory
reasons but rather was for proven misconduct;
WHEREAS, the Board wishes to assign primary
responsibility for enforcement of the Ordinance to county personnel staff more
familiar with issues of wages, benefits and retaliation than the County
Administrator’s office, and wishes to make it easier for the Ordinance to be
enforced through private action so as to minimize the enforcement burden upon
county staff;
NOW, THEREFORE, THE BOARD OF SUPERVISORS OF THE COUNTY OF MARIN HEREBY
ORDAINS AS FOLLOWS:
SECTION I. Chapter 2.50 of the Marin County Code is hereby deleted.
SECTION II. Chapter 2.52 of the Marin County Code is hereby adopted, to read as
follows:
Section 2.52.010 Short Title
This chapter shall be known as the “County of Marin Living Wage
Ordinance.”
Section 2.52.020 Findings and purpose.
The board of supervisors finds that the county of Marin is the principal
provider of social and health services within the county, especially to persons
who are compelled by economic constraints to turn to the county for such
services. Employers’ failure to pay a living wage to their employees may cause
individuals to use such services, thereby placing a burden on the county’s
limited resources. To alleviate the strain on county services and to help
promote within the region an acceptable living standard for working residents,
the county is instituting a living wage policy as described in this chapter.
Section 2.52.030 Definitions.
Whenever they appear in this chapter, the following terms shall have the
meanings provided in this section, unless it is apparent from the context that
a different meaning is intended:
A. “Awarding authority” means the county department, officer or agency
that recommends or is otherwise responsible for the administration of a service
contract.
B. “County” means the county of Marin, any county officer or body, any
county department or agency head, and any county employee authorized by the
board of supervisors to enter into a contract with an employer.
C. “Contractor” means a person or entity that enters into a “service
contract” with the county except those contractors who enter into “public
works” contracts governed by the California Public Contracts Code wherein the
prevailing wage applies.
D. “Employee” means an individual who is permanently or temporarily
employed by a county contractor or subcontractor performing direct services
during any applicable pay period on work funded (in whole or in part) pursuant
to a service contract as defined under this chapter. Employee also includes a
county employee, except county full or part-time employees who are in the
student aide or seasonal job classifications. IHSS providers are subject to
this chapter.
Employee does not include an individual who is: (1) A worker classified as
a student trainee or intern working through an approved state or academic
program or working towards state licensure or a professional accreditation
sanctioned by a public entity or recognized licensure agency; (2) nor does it
include anyone, regardless of age, who is providing services to earn academic
credit or as part of a formal government approved, time-specific training
program (e.g., Marin Conservation Corps trainees); and (3) employee also does
not include a person providing volunteer services.
E. “Subcontractor” means any person or entity, other than an employee,
that enters into a contract with a contractor to assist the contractor in the
performance of a “service contract.” The term “subcontractor” specifically
includes personnel leasing agencies, temporary employee agencies, and other
persons or entities, other than an employee, who supply personnel to a
contractor for the purpose of performing the services covered by a “service
contract.”
F. “Service contract” means a contract for “services” entered or to be
entered into by the county with another person or entity that: (1) involves an
expenditure in excess of twenty-five thousand dollars, within the county’s
fiscal year (July 1st through June 30th); and (2) has a term of at least three
months. Where the same person or entity has or will have two or more contracts
with the county that would qualify as service contracts under this definition
except that one or more of the contracts does not involve an expenditure in
excess of twenty-five thousand dollars within a fiscal year, if the contracts
taken cumulatively will involve such an expenditure, each such contract shall
be deemed a “service contract.”
A “service contract” specifically does not include: 1. a contract subject
to federal or state laws or regulations that would preclude application of the
living wage requirement otherwise applicable pursuant to this chapter;
2. A contract between the county and another governmental entity;
3. A public works contract wherein the prevailing wage applies;
4. Community block grant contracts where the county of Marin acts as the
fiscal liaison for public entities other than the county.
G. “Services” means any professional, technical, or non-technical services
provided under contract with the county.
Section 2.52.040 Requirements.
A. Contractors and subcontractors providing services to the county
pursuant to a service contract shall pay employees providing services pursuant
to the service contract a wage of no less than the living wage set forth in
this chapter.
B. The requirements of this section apply to subcontractors of a service
contract contractor if the subcontractor employees are engaged in county funded
services.
Section 2.52.050 Living wage rate.
A. The county of Marin, contractors and subcontractors shall pay employees
a living wage for services financed by county funds for the time those
employees are engaged in providing services to the county. As used in this
section, the “living wage” means, for the period January 1, 2007 through
December 31, 2007, no less than nine dollars and seventy-five cents per hour
with health benefits, otherwise no less than eleven dollars and twenty-five
cents per hour, if the contractor or subcontractor does not provide health
benefits. The living wage shall adjust annually after December 31, 2007 in accord
with subsection (C) of this section.
B. Health benefits required by this section shall consist of the payment
of at least one dollar and fifty cents per hour towards the provision of health
care benefits for the employee and his/her dependents. The contractor or
subcontractor must provide written proof of the provision of such benefits to
the county purchasing agent or other awarding authority during the procurement
or contracting process.
C. The wage rates required in paragraphs (A) of this section shall be
adjusted annually, effective January 1, to reflect the increase during the
preceding year in the Consumer Price Index for all urban consumers in the San
Francisco-Oakland-San Jose Consolidated Metropolitan Statistical Area, as
published in October of each year by the U.S. Department of Labor, Bureau of
Labor Statistics. The adjustment shall be rounded to the nearest five cent
increment; shall become effective every January 1 without need for the board of
supervisors to annually adopt an ordinance; and shall be posted by the county
administrator on its website for the notice of all county departments,
contractors and subcontractors.
Section 2.52.060 Exemptions.
A. Government Entities. This chapter shall not apply to contracts with
governmental agencies, including, without limitation, cities, counties and
state agencies.
B. In-Patient Health and Mental Health Providers. This chapter shall not
apply to in-patient health and mental health providers unless the county of
Marin occupies seventy-five percent or more of their beds.
C. Where a contractor or subcontractor is otherwise required to comply
with these living wage provisions, the contractor or subcontractor may pay
seventy-five percent of the living wage to apprentices or trainees up to their
first ninety days of service on the contract. This exception shall only apply
to ninety days of service; it cannot be re-commenced on subsequent contracts
with the same apprentices or trainees. Additionally, where the contractor or
subcontractor claims this exemption, it must agree to employ the apprentice or
trainee for one year unless the employee is dismissed for good cause.
Section 2.52.070 Bidding preference.
There shall be a five percent bidding preference to contractors who
certify that at least fifty percent of the workforce under the service contract
will be Marin County residents.
Section 2.52.080 Contractual/proposal language.
All bid documents and service contracts for services, as defined in
Section 2.52.030(F), are to contain the following paragraph or substantially
similar language:
The contractor shall comply with any and all federal, state and local laws
(including, but not limited to the County of Marin Nuclear Free Zone and Living
Wage Ordinance) affecting the services provided by this contract.
Section 2.52.090 Contractor certification and eligibility.
A. During the term of a service contract, the contractor and any
subcontractor shall certify to the county and maintain documentation
demonstrating that each employee employed any percentage of time on county
financed activities is: (1) being compensated at the living wage rate while
working in connection with services provided pursuant to the service contract
and (2) for those employees being compensated at the lower rate with health benefits
specified in Section 2.52.050, documentation must be maintained demonstrating
that each such employee was provided health benefits. Such documentation must
be retained for at least two years following completion or termination of the
contract. County representatives shall be permitted to review and make copies
of such documentation at all reasonable times during performance or following
completion or termination of the service contract.
B. Contractors shall furnish to county for services rendered a certification(s),
under penalty of perjury, by contractor that the contractor and any
subcontractor is in full compliance with the provision of the county of this
chapter. The certification shall be in substantially the following language:
I hereby certify under penalty of perjury, under the laws
of the State of California that the services invoiced have been rendered and
that contractor and any subcontractor are in full compliance with the
provisions of the County of Marin Living Wage Ordinance.
C. Contractors and subcontractors must provide written notice to each
covered employee who is engaged in work pursuant to a service contract. The
notice shall specify the living wage rate, minimum health benefit, if
applicable, and that an employee has grievance rights if he/she believes
his/her rights under this chapter are being violated. A copy of the notice must
be made available to all covered employees, must be posted prominently in
languages spoken by a large percentage of the workforce, and a copy must be
submitted to the awarding agency.
Section 2.52.100 Administration of the provisions of this chapter.
A. Responsibility for administration of this chapter will be shared among
awarding authorities, the county purchasing agent, and county personnel office.
The personnel office will be responsible for general oversight of this chapter
and for developing a procedure setting forth how this chapter is to be applied,
and describing complaint and appeal processes for determining compliance with
this chapter.
B. The county personnel office shall have the right to conduct an
investigation as to whether a contractor or subcontractor is complying with the
terms of this chapter. Such investigation shall include the right to audit the
books of contractor and/or subcontractors and the right to inspect all records
of the contractor and/or subcontractor relating to the service contract.
C. The county purchasing agent and all county departments and agencies are
directed to incorporate appropriate language into all relevant bid documents,
requests for proposals and similar materials relating to “service contracts,”
and into all purchase order and other service contracts, issued, renewed, or
extended on or after the effective date of this chapter, requiring the
contractor and any subcontractors to comply with the requirements of this
chapter.
D. Annually, each awarding authority within the county is directed to
submit information to the county purchasing agent regarding the status of
service contracts within its purview. Commencing February 2003, and during each
subsequent February, the county purchasing agent will prepare and submit a
report to the administrator’s office listing those contracts, which required
payment of a living wage rate pursuant to this chapter and any information the
county administrator’s office deems necessary in order to assess the impact of
this chapter.
Section 2.52.110 Contract sanctions.
If a contractor violates any provision of this chapter, the county may
take one or more of the following actions:
1. Suspend or terminate the contract;
2. Require the contractor to pay: (a) any amounts underpaid in violation
of this chapter, (b) an administrative fee to reimburse the county
administrator’s office for investigation and enforcement (including county
counsel’s time) as a condition of avoiding suspension or termination; and/or
(c) penalties not to exceed $1000 per worker involved per day of violation.
3. Recommend to the board of supervisors that a contractor or
subcontractor be barred from award of future county contracts or subcontracts
for a period of time consistent with the seriousness of the violation, not to
exceed three years.
Section 2.52.120 Annual reports.
County administrator will provide annual reports to the board of
supervisors on the implementation and effect of this chapter.
Section 2.52.130 Neutrality in labor relations.
An employer shall not use any consideration received under a service
contract to hinder, or to further, organization of, or collective bargaining
activities by or on behalf of an employer’s employees, except that this
restriction shall not apply to any expenditure made in the course of good faith
collective bargaining, or to any expenditure pursuant to obligations incurred
under a collective bargaining agreement, or which would otherwise be protected
by the National Labor Relations Act or other state or federal law.
Section 2.52.140 Grievances.
An employee who believes his/her rights have been violated under this
chapter may file a grievance with the county personnel office. Grievances are
to be reviewed within a sixty day period. If the complaint is substantiated
then a number of administrative remedies may be applied including: (1)
restitution of the difference in wages paid and the appropriate living wage
rate may be required for complainant and all co-workers similarly affected; the
contractor or subcontractor shall pay such restitution and provide proof of
such payment; (2) termination of existing contract; (3) disqualification of
contractor from contracting with county for a period of three years; and/or (4)
the imposition of an administrative fee to reimburse the county for its
investigation and enforcement (including county counsel’s time), and the
imposition of a penalty not to exceed $1000 per day of violation per worker
involved.
Section 2.52.150 Employer retaliation prohibited.
No person shall take an adverse action against an employee due to the
employee having reported a violation or perceived violation of this chapter to
anyone.
Section 2.52.160 Employee remedies.
No remedy set forth in this chapter shall be construed to limit an
employee’s rights to bring any legal action for violation of his/her rights
under the chapter. An employee may bring an action against an employer in the
courts of the state of California for damages caused by an employer’s violation
of this chapter and the penalties set forth above, and if he or she prevails,
shall also be entitled to recover reasonable attorney’s fees and expenses. This
chapter does not authorize an award of damages, costs, expenses or attorney’s
fees against the county of Marin.
Section 2.52.170 No criminal penalty.
Notwithstanding any provision of this chapter or any other ordinance to
the contrary, no criminal penalties shall attach for any violation of this
chapter.
Section 2.52.180 Procedures for implementation.
The county administrator and personnel office are hereby authorized to
develop procedures to implement and enforce the provisions of this chapter.
Section 2.52.190 Exceptions.
Following a review and recommendation by the county administrator, the
board of supervisors may approve exceptions with or without conditions to any
of the requirements and regulations set forth in this ordinance based upon the
following findings:
A. The services to be provided are available from a single source and that
source has significant barriers to meeting the requirements of the ordinance
codified in this chapter; or
B. The exception is necessary to provide emergency services essential to
mitigate or prevent possible threats to public safety or public health for a
limited period of time; or
C. All bidders for the service to be provided have significant barriers to
meeting the requirements of the ordinance codified in this chapter and none of
the bidders propose that they can comply with the requirements of this chapter;
or
D. Any other circumstances that the board of supervisors finds to be in
the public interest.
Section 2.52.200 Effective date.
This chapter shall apply only to new contracts or contract extensions or
renewals made after the effective date of this chapter that are for a term or
extended term beginning on or after August 1, 2007.
SECTION III. Severance Provision. If any section, subsection, sentence, cause, phrase
or portion of this Ordinance is for any reason held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction, such
decision shall not affect the validity of the remaining portion of this Ordinance.
The Board of Supervisors hereby declares that it would have adopted this
Ordinance, and each section or portion thereof, irrespective of the fact that
any one or more section, subsection, sentence, clause, phrase or portion be
declared invalid or unconstitutional.
SECTION IV. Effective Date. This ordinance shall be and is hereby declared to be in
full force and effect as of August __ 2007 and shall be published once before
the expiration of fifteen (15) days after its passage, with the names of the supervisors
voting for and against the same in the MARIN INDEPENDENT JOURNAL, a newspaper
of general circulation published in the County of Marin.”
THE FOREGOING ORDINANCE was first read at a regular
meeting of the Marin County Board of Supervisors on the __ of _______, 2007 and
was passed and adopted at a regular meeting of the Marin County Board of
Supervisors on the __ of ________, 2007 by the following vote:
AYES:
NOES:
ABSENT:
_______________________________________
PRESIDENT, BOARD OF SUPERVISORS
ATTEST:
___________
CLERK