Living_Wage_Ordinance.pdf

ORDINANCE NO. 04774

BOARD OF SUPERVISORS, COUNTY OF SAN MATEO

STATE OF CALIFORNIA

AN ORDINANCE AMENDING CHAPTER 2.88 OF TITLE 2 OF

THE SAN MATEO ORDINANCE CODE

The Board of Supervisors of the County of San Mateo, State of California, ORDAINS as follows:

SECTION 1. AMENDMENTS.

Section 2.88.020, “Definitions,” is amended as follows:

1. The first sentence of subsection 2.88.020(f) is amended to read:

“‘Covered Employee’ means any permanent or temporary employee employed by a Contractor or a Subcontractor on a full-time or part-time basis to provide

Services under a Covered Contract.” The remainder of subsection 2.88.020(f) remains unchanged and in full force and effect.

2. Subsection 2.88.020(l) is amended to read:

“‘Services’ mean any professional, technical, or non-technical services specified in a legal agreement with the County. Services do not include:

a. The provision of goods, products, or real estate; or

b. The acquisition of goods or services related to information technology, such as computer hardware, software licenses, software development, and maintenance of hardware and software.”

Section 2.88.030, “Covered Contract Requirements and Certification,” is amended as

1. Subsection 2.88.030(k) is added, which reads:

“Nothing in this ordinance shall be construed to limit the California Equal Pay Act, which requires equal pay for employees who perform substantially similar work, when viewed as a composite of skill, effort and responsibility.”

Section 2.88.050, “Exclusions and Exemptions from Covered Contracts,” is amended as

1. Subsection 2.88.050(a)(2) is amended to read:

“Any agreement in which the County serves only as a fiscal agent and the contract is a 100% pass-through of state, federal, or other non-County funds.”

2. Subsection 2.88.050(c) is added, which reads:

“The requirements of this chapter shall not apply to any contract between the

County and a Nonprofit Organization, and such contracts shall be deemed exempt from this Chapter where:

a. The contract is a single contract that is financed less than 50% by County funds (i.e., funds for the contract come from multiple sources and County funds make up less than 50% of those funds); or

b. The contract between the County and the Nonprofit Organization is one or multiple contracts that fund a single program of the Nonprofit

Organization, and the County contract comprises less than 50% of the total funding for that single program. The Contract Awarding Authority shall have the discretion to determine whether activities funded by a contract between the County and the Nonprofit Organization constitute a single program and, if so, the scope of the program and the County’s proportional share of funding for the program.”

SECTION 2. EFFECTIVE DATE. This Ordinance shall be effective thirty days after its adoption.

ORDINANCE NUMBER: 04774

Regularly passed and adopted this 28th day of February 2017

AYES and in favor of said ordinance:

Supervisors: DAVE PINE

CAROLE GROOM

DON HORSLEY

WARREN SLOCUM

DAVID J. CANEPA_____

NOES and against said ordinance:

Supervisors: NONE

Absent Supervisors: NONE

President, Board of Supervisors

County of San Mateo

State of California

Certificate of Delivery

I certify that a copy of the original ordinance filed in the Office of the Clerk of the Board of Supervisors of San

Mateo County has been delivered to the President of the Board of Supervisors.

Assistant Clerk of the Board of Supervisors

ORDINANCE NO. 04764

BOARD OF SUPERVISORS, COUNTY OF SAN MATEO

STATE OF CALIFORNIA

ORDINANCE ADDING CHAPTER 2.88 OF TITLE 2 OF THE SAN MATEO COUNTY

ORDINANCE CODE ENACTING A LIVING WAGE ORDINANCE PILOT PROGRAM

The Board of Supervisors of the County of San Mateo, State of California, ORDAINS as follows:

SECTION 1. Chapter 2.88, “Living Wage Ordinance Pilot Program,” consisting of Sections

2.88.010 through 2.88.090 is hereby added to Title 2 of the San Mateo County Ordinance Code and shall read as follows:

2.88.010 Findings and purpose

The Board of Supervisors finds and determines:

(a) The current Federal minimum wage is seven dollars and twenty-five cents ($7.25) per hour, and the California minimum wage is ten dollars ($10.00) per hour;

(b) The San Francisco Bay Area, including San Mateo County, has a higher relative cost of living than reflected in these national and state minimum wage standards;

(c) San Mateo County awards contracts to employers to provide services to the public and the

County government;

(d) The use of San Mateo County funds to promote a living wage will improve the quality of services to the County and the public by ensuring contractors have access to qualified employees and are able to retain qualified employees, and it will improve the quality of life for residents of the County and employees of County contractors;

(e) A policy requiring payment of a living wage is consistent with other San Mateo County programs designed to meet the employment and economic development needs of lower-income workers;

(f) This Board does, accordingly, find and declare a need for the Living Wage ordinance to determine the effects of a living wage requirement for contracts issued by San Mateo

County.

2.88.020 Definitions

(a) “Contract Awarding Authority” means the Board of Supervisors or the head of the department or agency authorized by the Board of Supervisors to enter into contracts on behalf of the County.

(b) “Contractor” means a party that enters into a Covered Contract with the County.

Contractor does not mean:

1. Government entities, including cities, counties, and state agencies.

(c) “County” means the County of San Mateo.

(d) “Covered Contract” means a legal agreement between the County and a Contractor for the provision of Services entered into on or after April 1, 2017.

1. Where one entity has multiple contracts with the County, only those contracts that are Covered Contracts are subject to this chapter.

2. Legal agreements for the exclusive use of real property owned by the County, including, without limitation, any lease, concession, franchise, or easement agreement, are not Covered Contracts.

(e) “Covered Contract Amendment” means the amendment of a contract on or after

January 1, 2017, that:

1. Voluntarily subjects the contract to the requirements of this Chapter;

2. Increases the contract price more than $25,000; or

3. Extends the contract term.

Covered Contract Amendments are subject to the requirements of this Chapter.

(f) “Covered Employee” means any employee permanently or temporarily employed by a

Contractor or Subcontractor to provide Services under a Covered Contract. Covered

Employee does not mean:

1. Any person providing services to earn academic credit;

2. Any person providing uncompensated volunteer services;

3. Any person working toward state licensure or professional accreditation sanctioned by a public entity or a recognized licensure agency;

4. Any person working as an election day worker;

5. Any disabled person covered by a current sub-minimum wage certificate issued to the Contractor or Subcontractor by the United States Department of Labor, or any person who would be covered by such certificate but for the fact the

Contractor or Subcontractor is paying a wage equal to or higher than the minimum wage;

6. Any person employed to provide In-Home Supportive Services;

7. The County Manager’s Office shall have discretion to exclude certain additional categories of employees from the definition of Covered Employee when in the best interest of the County to do so.

(g) “CPI-U” means the consumer price index for urban consumers for the San Francisco-

Oakland-San Jose metropolitan statistical area, as determined by the United States

Department of Labor, Bureau of Labor Statistics.

(h) “Enhancement” means a payment from the County to eligible Nonprofit Organizations that amend existing contracts to comply with the Living Wage Ordinance. An

Enhancement shall be a percentage of a Covered Contractor’s total contract price, as specified by this Chapter, and shall be paid annually until the contract ends or the not-to-exceed amount is amended.

(i) “Living Wage” means the wage rate specified by this chapter.

(j) “Nonprofit Organization” refers to a nonprofit corporation, duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation and (if a foreign corporation) in good standing under the laws of the State of California, which corporation has established and maintains a valid nonprofit status under Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated under such Section.

(k) “Reserve” means funds maintained by the County to pay for approved Enhancement appeals.

(l) “Services” mean any professional, technical, or non-technical services specified in a legal agreement with the County. Services do not include the provision of goods, products, information technology programs and systems, chattels, or real estate.

(m) “Sole Source” means only one entity has been identified as capable of providing and willing to provide the services sought by the County.

(n) “Subcontractor” means a party, other than an Employee, that agrees to assist a

Contractor in providing Services under a Covered Contract.

(o) “Wage” means a Covered Employee’s hourly wage or hourly wage equivalent. For a full-time employee, hourly wage equivalent is determined by dividing two weeks of salary by eighty (80).

2.88.030 Covered Contract Requirements and Certification

Every Covered Contract or Covered Contract Amendment shall provide as follows:

(a) Contractors and Subcontractors providing Services to the County shall pay Covered

Employees no less than the Living Wage.

(b) Failure of a Contractor or Subcontractor to comply with the foregoing requirement shall constitute a material breach of the terms of the Covered Contract.

(c) If the Contractor or Subcontractor fails to cure such breach within thirty (30) days after receiving written notice from the County, the County shall have the right to pursue any rights or remedies available under the terms of the Covered Contract or under applicable law.

(d) Contractor shall include a certification in the Covered Contract or Covered Contract

Amendment stating Contractor and all of its Subcontractors are and will remain in full compliance with the requirements of the Living Wage ordinance. The certification shall be in substantially the following language:

As required by Chapter 2.88 of the San Mateo County Ordinance Code, Contractor certifies all contractor(s) and subcontractor(s) obligated under this contract shall fully comply with the provisions of the County of San Mateo Living

Wage Ordinance (“LWO”), including, but not limited to, paying all Covered

Employees the current Living Wage and providing notice to all Covered

Employees and Subcontractors as required under the Program.

(e) During the term of a Covered Contract, the Contractor or Subcontractor shall maintain documentation demonstrating every Covered Employee is being paid the Living Wage while providing Services pursuant to the Covered Contract. Such documentation must be retained for at least two (2) years following completion or termination of the Covered

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 Covered Contract.

(f) The County may conduct audits of Contractors and Subcontractors to ensure compliance with this Ordinance. For purposes of this Ordinance, audits shall be:

1. Noticed in advance in writing and limited in scope to ascertain whether Covered

Employees are paid the required Living Wage;

2. Accomplished by examination of pertinent records within a reasonable period of time after such written notice; and

3. Limited to one audit per Contractor or Subcontractor every year for the duration of a Covered Contract.

(g) Contractor shall provide the County access to pertinent records after receiving a written request to do so and being provided at least five (5) business days to respond.

(h) Contractor shall promptly notify the Contract Awarding Authority of any Subcontractors performing Services and shall certify to the Contract Awarding Authority that

Subcontractors have been notified of obligations under this chapter.

(i) Contractor shall keep itself informed of the current Living Wage and must provide written notice to Covered Employees of the current Living Wage Rate. The notice shall specify the Living Wage and state that Covered Employees have grievance rights if they believe a Contractor or Subcontractor is failing to comply with the Living Wage Ordinance.

Contractors and Subcontractors must provide such notice in writing to all Covered

Employees, in all languages necessary to reasonably ensure all Covered Employees receive effective written notice pursuant to Section 2.88.030. A copy of such notice must be submitted to the Contract Awarding Authority in the manner directed by the Contract

Awarding Authority.

(j) Nothing in this section shall be construed to interfere with the authority of the County to investigate any report of an alleged breach of contract.

2.88.040 Living Wage Rate

The Living Wage shall be set and adjusted according to the following schedule.

Effective Date San Mateo County Living Wage

January 1, 2017 $14.00

July 1, 2017 $15.00

January 1, 2018

July 1, 2018 $16.00

January 1, 2019

July 1, 2019 $17.00

January 1, 2020

July 1, 2020 +CPI-U

January 1, 2021

July 1, 2021 +CPI-U

(a) After a wage of seventeen dollars ($17.00) per hour is reached, the Living Wage shall increase annually at the same rate as the CPI-U for San Francisco-Oakland-San Jose then in effect.

(b) A change in Living Wage based on CPI-U shall not be negative and shall not exceed three-and-one-half percent (3.5%).

2.88.050 Exclusions and Exemptions from Covered Contracts

(a) The term Covered Contract shall exclude:

1. Contracts for “public works” as defined under California Labor Code Sections

1720 and 1720.2 and subject to the payment of prevailing wages under the

California Labor Code.

2. Any agreement in which the County serves only as a fiscal agent and the contract is a 100% pass-through of state or federal funds.

(b) The Contract Awarding Authority may exempt from the requirements of this Chapter

2.88, an agreement that would otherwise be a Covered Contract, when it is in the best interest of the County to do so, including for the following reasons:

1. Upon review and approval of an exemption request by the Contractor or

Subcontractor. Exemption requests are to be submitted by the Contractor or

Subcontractor to the Contract Awarding Authority;

2. A contract amendment or award of a contract is necessary to respond to an emergency;

3. The Contractor is a Sole Source;

4. No contractors willing or able to comply with the Living Wage Ordinance are capable of providing services that respond to the County’s requirements;

5. Compliance with the Living Wage Ordinance would be inconsistent with the terms of a grant, subvention, or agreement with a public agency; or

6. The County is purchasing services through a cooperative or joint purchasing agreement.

2.88.060 Employee Remedies

(a) This chapter shall not be construed to limit a Covered Employee’s rights to bring any legal action for violation of the Covered Employee’s rights under this chapter or any other applicable law. A Covered Employee may bring an action against a Contractor or

Subcontractor in the courts of the State of California for damages caused by a

Contractor’s or Subcontractor’s violation of this chapter. The Court shall award reasonable attorneys’ fees and costs to an employee who prevails in any such action.

(b) This chapter does not authorize an award of costs, expenses, or attorney’s fees against the County.

(c) This chapter does not confer any rights upon any party other than the Board of

Supervisors or its designees to bring an action seeking the cancellation or suspension of a County contract.

(d) Covered Employee Complaint Process: In addition to judicial remedies available to

Covered Employees, individuals may submit a complaint regarding alleged violations of the Living Wage Ordinance by submitting a completed complaint form, including copies of all documents supporting the allegation, to the Purchasing and Procurement Division of the County Human Resources Department. The County shall provide complaint forms in English and Spanish.

2.88.070 Employer Retaliation Prohibited

Contractors and Subcontractors shall not discharge, reduce compensation to, or otherwise retaliate against any employee for:

(a) Complaining to the County with regard to the Contractor’s or Subcontractor’s compliance or anticipated compliance with this Chapter;

(b) Opposing any practice proscribed by this Chapter;

(c) Participating in proceedings related to this Chapter; or

(d) Seeking to assert or enforce any rights under this Chapter by lawful means.

2.88.080 Termination, Suspension, or Extension of the Living Wage Ordinance

(a) The Living Wage Ordinance shall expire on December 31, 2021.

(b) The Board of Supervisors may extend or permanently enact the Living Wage Ordinance after conducting a duly-noticed public hearing.

(c) The Board of Supervisors may suspend the Living Wage Ordinance if it determines it is in the best interests of the County for reasons including, but not limited to, suspension by the State of California of the statewide minimum wage phase-in process.

2.88.090 Powers and duties of the County Manager

The County Manager’s Office shall have the authority to:

(a) Adopt policies and procedures to effectively implement this Chapter;

(b) Determine and recommend to the Board of Supervisors for final decision the imposition of appropriate sanctions for violation of this Chapter including but not limited to:

1. Disqualification of the Contractors or Subcontractors from bidding on or being awarded a County contract for a period of up to five (5) years;

2. Contractual and civil remedies, including but not limited to termination of contract.

(c) Allow for remedial action after a finding of noncompliance, as specified by rule; and

(d) Perform such other duties as may be required or necessary to implement the purposes of this chapter.

SECTION 2. SEVERABILITY. If any provision(s) of this ordinance is declared invalid by a court of competent jurisdiction, it is the intent of the Board of Supervisors that such invalid provision(s) be severed from the remaining provisions of the ordinance and that those remaining provisions continue in effect.

SECTION 3. EFFECTIVE DATE. This Ordinance shall be effective on January 1, 2017.

ORDINANCE NUMBER: 04764

Regularly passed and adopted this 1st day of November 2016

AYES and in favor of said ordinance:

Supervisors: DAVE PINE

CAROLE GROOM

DON HORSLEY

WARREN SLOCUM

ADRIENNE J. TISSIER

NOES and against said ordinance:

Supervisors: NONE

Absent Supervisors: NONE

President, Board of Supervisors

County of San Mateo

State of California

Certificate of Delivery

I certify that a copy of the original ordinance filed in the Office of the Clerk of the Board of Supervisors of San

Mateo County has been delivered to the President of the Board of Supervisors.

Deputy Clerk of the Board of Supervisors