Judge Won't Block Pandemic-Related Pay Raises for Grocery Workers

By Joanne Deschenaux March 9, 2021
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supermarket staff in protective mask and face shield

An ordinance in Long Beach, Calif.—which requires grocery stores to pay workers $4 more than their hourly wage for a period of at least 120 days—can take effect, a federal judge in California ruled on Feb. 25.

The court rejected an attempt by the California Grocers Association (CGA) to delay implementation of the ordinance, finding that the grocers were unlikely to succeed on their claim that the law was illegal and unconstitutional.

Long Beach enacted the Premium Pay for Grocery Workers Ordinance on Jan. 19. The law aims to protect the public health, safety and welfare during the COVID-19 crisis by requiring grocery stores to pay premiums to grocery workers employed in the city.

The ordinance acknowledges that grocery workers face magnified risks of catching or spreading COVID-19 because the nature of their work involves close contact with members of the public, including those who are not showing symptoms of COVID-19 but can spread the disease.

The ordinance notes that premium pay better ensures the retention of these essential workers who are on the front lines of the pandemic and that grocery workers are deserving of fair and equitable compensation for their work.

The day after the ordinance was enacted, the CGA filed a lawsuit on behalf of its members, who are grocery store employers, seeking a preliminary injunction to delay implementation of the law until a full hearing could be held to determine its legality and constitutionality.  

Grocers Unlikely to Prevail

The court noted that a preliminary injunction—which would temporarily block the law from taking effect—is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. To obtain a preliminary injunction, the moving party must establish a number of factors, including that it is likely to succeed on the merits of its underlying claim once that claim goes to trial.

The court found that the injunction was not warranted because CGA failed to establish that it was likely to succeed in challenging the law.

CGA claimed that the law was pre-empted by the federal National Labor Relations Act (NLRA) and that it violated the equal protection clauses of the U.S. and California constitutions.

The NLRA is a federal law that governs relations between labor and management, including union organizing, collective bargaining and the conduct of labor disputes.

Under the doctrine of federal pre-emption, states or municipalities may not enact laws that would undermine the operation of a federal law, the court noted.

However, the court said, the NLRA is concerned with ensuring an equitable bargaining process, not with the substantive terms that may emerge from such bargaining. Therefore, the court said, the mere fact that a state statute or municipal ordinance relates to matters over which the parties are free to bargain does not support a claim of pre-emption.

The ordinance benefits union and non-union grocery workers as individuals and does not interfere with the collective bargaining process, the court said, rejecting the pre-emption claim.

The court then considered whether CGA established a likelihood of success on its equal protection claims. The court focused primarily on the federal standard, noting that the equal protection analysis under the California Constitution is substantially similar to the analysis under the federal equal protection clause.

The equal protection clause directs that all persons in similar circumstances be treated alike. CGA argued that because the ordinance singles out grocers and ignores other groups that employ essential front-line workers, it violates the constitutional equal protection mandate.

The court explained that in determining whether most legislative classifications will withstand constitutional scrutiny under the equal protection clause, the "rational basis test" is used. Under this test, the ordinance will be upheld if it addresses a legitimate government interest and there is a rational connection between the ordinance's goals and the measures taken to meet those goals.

The classification at issue here includes employers with at least 300 employees nationwide and at least 15 employees per grocery store in Long Beach. The city advanced the theory that large grocery stores have made significant profits during the pandemic while their employees' wages have remained the same, despite the increased risk of exposure to COVID-19 that grocery workers face, the court said.

This presents a conceivable, rational basis for the classification in question, the court concluded, rejecting the equal protection claim.

California Grocers Association v. City of Long Beach, C.D. Calif., No. 2:21-cv-00524-ODW-AS (Feb. 25, 2021).

Professional Pointer: CGA has appealed the decision. If it is reversed on appeal, covered employers would not be required to comply with the ordinance until a final decision is made in the case.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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