Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On January 25, 2021, the Seattle City Council unanimously passed an ordinance requiring hazard pay for certain grocery business employees during the COVID-19 pandemic. Mayor Durkin signed the ordinance into law on January 29. Below are expected questions and answers for employers related to the new ordinance, which took effect immediately upon enactment.
Which employers are covered?
The ordinance applies only to grocery businesses in Seattle that employ 500 or more employees worldwide regardless of where those employees are employed. A grocery business is defined as a retail store in Seattle that is either of the following:
- Over 10,000 square feet and primarily engaged in retailing groceries for offsite consumption; or
- Over 85,000 square feet with at least 30% or more of its sales floor area dedicated to the sale of groceries.
In determining whether an employer is “primarily engaged” in retailing groceries, the following factors may be considered (but is not an exhaustive list): grocery sales as a percentage of the retail store’s overall sales; sales floor area dedicated to grocery sales; marketing or promotional materials from the employer; or other public statements from representatives of the employer.
The ordinance specifically excludes convenience stores, food marts, and farmers’ markets from its definition of “grocery business.”
Which workers must receive hazard pay?
Any worker who performs work at a retail location of a grocery business in Seattle and who meets the definition of “employee” under Seattle Municipal Code Section 12A.28.200 must receive hazard pay. These are any employees who are not employed in a bona fide executive, administrative, professional, or outside sales capacity. Covered employees include, but are not limited to, full-time employees, part-time employees, and temporary workers.
Gig workers subject to Seattle’s Premium Pay for Gig Workers Ordinance are not covered by this hazard pay ordinance.
How much hazard pay do employees receive?
In addition to their regular compensation, the ordinance requires covered employees to receive $4 per hour in hazard pay for each hour worked in Seattle. Employers are prohibited from reducing employee compensation to prevent employees from receiving the additional $4 per hour in required hazard pay.
Employers must provide the hazard pay on the established, regular pay day. The hazard pay must be itemized separately from payment for wages or other compensation.
Are there notice and posting requirements?
Yes. Within 30 days of the ordinance’s effective date, employers must display a written notice of rights under the ordinance in a conspicuous and accessible place at any workplace or jobsite where any of their employees work. The notice must be in English and the primary language(s) of the employees at the workplace. The notice must provide information regarding (1) the right to hazard pay guaranteed under the ordinance; (2) the right to be protected from retaliation for exercising in good faith the rights protected by the ordinance; and (3) the right to file a complaint with the Seattle Office of Labor Standards (OLS) or bring a civil action for ordinance violations.
OLS may create and distribute a model notice of rights, but employers are responsible for providing employees with the notice requirements regardless of whether OLS creates a model notice of rights.
Additionally, an employer must comply with Seattle’s Wage Theft Ordinance and provide revised written notice of employment information to include notice of hazard pay.
Are there recordkeeping requirements?
Yes. An employer is required to retain all records that document compliance with the ordinance for each employee for three years. Failing to retain adequate records creates a rebuttable presumption that the employer violated the ordinance for the period an employer did not retain records and for the employees for whom the employer did not retain records.
What other right are afforded to employees under this ordinance?
The ordinance prohibits retaliation. An employer shall not take any adverse action against any person for any of the following reasons:
- Inquiring about the rights protected under the ordinance;
- Informing others about their rights under the ordinance;
- Informing the person's employer, the person’s legal counsel, a union or similar organization, or any other person about an alleged violation of the ordinance;
- Filing a complaint with OLS;
- Bringing a civil action for an alleged violation of the ordinance;
- Cooperating with the OLS in an investigation under the ordinance;
- Opposing any policy, practice, or act that is unlawful under the ordinance.
A rebuttable presumption of retaliation exists if an employer takes an adverse action against a person within 90 days of the person’s exercising rights under the ordinance.
Furthermore, individuals may not waive any provisions of the ordinance, and such waiver shall be void, unenforceable, and deemed contrary to public policy.
What are the consequences of non-compliance?
OLS has authority and jurisdiction to investigate and enforce any violations of the ordinance. The ordinance authorizes OLS to impose civil penalties and fines, including a maximum amount of $5,565.10 in fines for a one-year period, unless a fine for retaliation is issued. The maximum amount in fines for retaliation in a one-year period is $22,259.36. The ordinance includes a schedule of fines authorized for specific types of violations.
The ordinance also creates a private right of action for any person who suffered financial injury as a result of an employer’s violation of the ordinance, including any person who suffered retaliation for exercising or attempting to exercise any right protected under the ordinance.
How long will this ordinance be in effect?
The hazard pay ordinance will be in effect “for the duration of the civil emergency proclaimed by the Mayor on March 3, 2020.”1 According to a Seattle City Council press release, however, the council may reconsider the ordinance after four months. This four-month reconsideration mark is due to the Washington State Department of Health vaccination plan to have vaccines available for all grocery employees by April 2021.
1 Hazard Pay Ordinance, SMC § 100.025.C.