Ordinance No. 2021-13 Relating to Hazard Pay for Grocery Workers-Approved 032321Page 1 of 15
ORDINANCE NO. 2021-13
AN ORDINANCE of the City of Bainbridge Island, Washington,
establishing a hazard pay requirement for additional compensation
for certain grocery employees within the City of Bainbridge Island
to protect the public health and safety; authorizing interpretative
authority; providing for severability; declaring an emergency; and
establishing an immediate effective date.
WHEREAS, the new coronavirus 19 (“COVID-19”) disease is caused by a virus that
spreads easily from person to person and may result in serious illness or death, and is classified
by the World Health Organization as a worldwide pandemic; and
WHEREAS, COVID-19 has broadly spread throughout Washington state and remains a
significant health risk to the community, especially members of our most vulnerable populations;
and
WHEREAS, on February 3, 2021, the City Council of the City of Seattle adopted
Ordinance 126274 on an emergency basis, and that ordinance, like this ordinance, relates to
hazard pay for employees (“Seattle Hazard Pay for Grocery Employees Ordinance”); and
WHEREAS, a legal challenge to the Seattle Hazard Pay for Grocery Employees
Ordinance was dismissed with prejudice on March 18, 2021 by Judge Coughenour, United States
District Court Judge for the United States District Court for the Western District of Washington,
Seattle Division, and this Ordinance No. 2021-13 for Bainbridge Island is intended to be
consistent with the legal principles that the United States District Court and other courts have
determined to be acceptable and legally sound; and
WHEREAS, based on information from the Seattle Hazard Pay for Grocery Employees
Ordinance, the Brookings Metropolitan Policy Program, in October 2020, reported that the
United States’ top retail companies, including grocery businesses, have earned record-breaking
profits during the pandemic; and
WHEREAS, grocery employees have been supporting grocery businesses’ operations
and facilitating community access to food during the pandemic, despite facing a clear and
present danger of workplace exposure to COVID-19 and receiving limited or inconsistent
additional pay in recognition of this hazard; and
WHEREAS, the dangers of working during the pandemic are especially significant for
Black, Indigenous, and People of Color (“BIPOC”) employees who are overrepresented among
the retail frontline workforce and who are disproportionately impacted by COVID-19; and
WHEREAS, establishing a requirement for grocery employees to receive hazard pay for
work performed in Bainbridge Island during the COVID-19 emergency will promote job
retention, compensate applicable employees for the risks of working on the frontlines of a global
pandemic, improve their financial ability to access resources for protecting themselves and their
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families from catching or spreading the virus or coping with illness caused by the virus, and
support the welfare of the greater community that depends on grocery employees for safe and
reliable access to food; and
WHEREAS, the City encourages employers of essential frontline workers to help
facilitate the distribution of COVID-19 vaccines to their employees as vaccines become
available; and
WHEREAS, recognizing the ongoing threat to frontline grocery employees, several
California cities, including Berkeley, Long Beach, Los Angeles, and San Francisco, as well as
Los Angeles County, have announced legislative efforts to require hazard pay of $4 to $5 per
hour for grocery employees during the COVID-19 emergency, and more cities are expected to
announce similar legislation; and
WHEREAS, the City strives to be a leader on wage, labor, and workforce practices that
improve workers’ lives, support economic security, and contribute to a fair, healthy, and vibrant
economy; and
WHEREAS, establishing a labor standard that requires hazard pay for grocery
employees is a subject of vital and imminent concern to the community and requires appropriate
action by the City Council; and
WHEREAS, the City has the authority under state law, including Chapters 35A.11 and
35A.13 RCW, to exercise its police powers, and the City is granted authority to enact regulations
designed to protect and promote public health, safety, and welfare; and
WHEREAS, this ordinance protects and promotes public health, safety, and welfare
during the COVID-19 emergency by requiring grocery businesses to provide hazard pay for
grocery employees performing work on Bainbridge Island, thereby increasing retention of
employees who provide essential services on the frontlines of a global pandemic and paying
additional compensation to those employees for the hazards of working with significant exposure
to an infectious disease; and
WHEREAS, on January 30, 2020, the World Health Organization (“WHO”) declared
that COVID-19 constituted a public health emergency of international concern, WHO’s highest
level of alarm; and
WHEREAS, on February 29, 2020, Washington Governor Jay Inslee issued
Proclamation 20-05, proclaiming a state of emergency for all counties throughout the state of
Washington in response to new cases of COVID-19, and directing state agencies to use all
resources necessary to prepare for and respond to the outbreak; and
WHEREAS, on March 9, 2020, then City Manager Morgan Smith issued a Proclamation
of Emergency in accordance with Chapter 2.44 of the Bainbridge Island Municipal Code in
response to new cases of COVID-19, which authorized the City Manager to exercise the
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emergency powers necessary to take extraordinary measures to save lives and protect public
health and safety or to avert or lessen a threat of a major disaster; and
WHEREAS, on March 10, 2020, the City Council adopted Resolution No. 2020-06,
which recognized the existence of the COVID-19 public health emergency, affirmed and ratified
the City Manager’s Proclamation of Emergency, and authorized the emergency procurement of
goods and services to address the emergency; and
WHEREAS, on March 23, 2020, Washington Governor Inslee issued Proclamation 20-
25, a “Stay Home – Stay Healthy” order, closing all non-essential workplaces, requiring people
to stay home except to participate in essential activities or to provide essential business services,
and banning all gatherings for social, spiritual, and recreational purposes, and this order was
extended through May 31, 2020; and
WHEREAS, the “Stay Home – Stay Healthy” proclamation identified grocery
employees as “Essential Critical Infrastructure Workers” performing work to protect
communities and ensure continuity of functions critical to public health and safety, as well as
economic and national security; and
WHEREAS, on May 4, 2020, Washington Governor Inslee announced a “Safe Start”
plan to start on June 1, 2020 to reopen Washington’s economy in phases with adequate social
distancing measures and health standards in place; and
WHEREAS, based on the Seattle Hazard Pay for Grocery Employees Ordinance, in
October 2020, the British Medical Journal, Occupational & Environmental Medicine, reported
that grocery employees face a serious risk of COVID-19 infection and associated psychological
distress, and a study of 104 grocery employees at a grocery store in Boston, Massachusetts,
found that 20 percent tested positive for COVID-19 despite 91 percent of employees reporting
wearing a face mask at work and 77 percent of employees reporting wearing masks outside of
work, and the positive rate of infection among grocery employees was five times as likely for
those who interacted with customers than for those who did not; and
WHEREAS, that same study found that 76 percent of employees had no symptoms,
suggesting that these employees could be an important reservoir of asymptomatic infection, and
24 of the 99 employees who filled out a related medical health questionnaire also reported
experiencing anxiety, and eight employees were deemed depressed from their questionnaire
answers; and
WHEREAS, based on the Seattle Hazard Pay for Grocery Employees Ordinance, in
November 2020, the Brookings Metropolitan Policy Program reported that the profits of top
retail companies, including grocery businesses, soared during the pandemic while their
employees earned low wages and, with few exceptions, failed to receive consistent or
meaningful additional compensation for performing life threatening work; and
WHEREAS, that same report found that the top retail companies in their analysis earned
on average an extra $16.7 billion in profit compared to the previous year – a 40 percent increase,
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and frontline retail employees experienced little of this windfall, averaging a 10 percent pay
increase on top of wages that were often too low to meet a family’s basic needs; and
WHEREAS, on January 3, 2021, the Center for Disease Control (“CDC”) reported that
multiple COVID-19 variants are circulating globally that appear to spread more easily and
quickly than other variations; and
WHEREAS, studies show that a variant first detected in the United Kingdom (“U.K.”) in
September 2020, known as B.1.1.7, is 50 to 70 percent more transmissible than the previously
circulating form of the COVID-19 virus and is responsible for more than half of new infections
in the U.K., and cases in the United States have occurred in several states; and
WHEREAS, studies show that a highly contagious COVID-19 variant first detected in
South Africa may pose a risk to COVID antibody treatments; and
WHEREAS, the Washington State Department of Health (“WSDOH”) has provided
updates related to vaccines that are authorized for emergency use by the United States Food and
Drug Administration, and in December 2020, the WSDOH published a COVID-19 vaccine
estimated timeline beginning in December 2020 with a “Phase 1.A.” for high-risk health care
workers in healthcare settings, high-risk first responders, long term care facility residents, and
continuing for other identified high-risk individuals; and
WHEREAS, the timeline stated that future phases would be announced for May through
December 2021, and initially WSDOH’s COVID vaccine timeline indicated that all grocery
employees would be eligible for vaccination in February 2021, although modified timelines have
since been issued; and
WHEREAS, although vaccines are becoming more available, there have been serious
issues with logistics and supplies locally, across Washington state, and around the nation; and
WHEREAS, on January 5, 2021, Governor Inslee announced the “Healthy
Washington—Roadmap to Recovery,” a COVID-19 phased recovery plan beginning on January
11, 2021 that started with every region in Phase 1, such that regions have been allowed to reopen
when they meet certain metrics related to hospitalization and case data; and
WHEREAS, based on information from the Washington State Department of Health as
of March 19, 2021, thus far in this pandemic there have been a total of 5,174 deaths throughout
Washington state due to COVID-19, and statewide there have been 353,792 positive COVID-19
cases; and
WHEREAS, based on information from the Kitsap Public Health District as of March
19, 2021, thus far in this pandemic there have been a total of 90 deaths in Kitsap County due to
COVID-19, and Kitsap County has experienced 6,058 positive COVID-19 cases, including 271
on Bainbridge Island, 1,000 in North Kitsap, 1,426 in Central Kitsap, 1,620 in Bremerton, and
1,741 in South Kitsap, and the rate of positive cases per 100,000 is currently 77.5 over the past
14 days; and
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WHEREAS, throughout the entirety of the COVID-19 emergency, grocery businesses
have been operating on Bainbridge Island and relying upon the work of grocery employees who
are highly vulnerable to health and safety risks; and
WHEREAS, grocery employees are essential workers performing services that are
fundamental to the economy and health of the community during the COVID-19 crisis, and they
face clear and present dangers at their jobs and continue to risk their lives and the health of their
families to keep the community’s food supply chain operating; and
WHEREAS, grocery employees cannot choose to work from home and must come to
work to perform their jobs, which can involve substantial interaction with customers and/or
ventilation systems that could potentially spread the virus, and they are wearing masks, trying as
much as possible to social distance, performing safety protocols, and learning new skills to
decrease transmission of the virus to protect themselves and the public; and
WHEREAS, the risks of working during the pandemic are especially significant for
BIPOC employees because they are overrepresented among the retail frontline workforce and are
disproportionately impacted by COVID-19, and data shows that people of color are
disproportionately experiencing hospitalization and dying of COVID-19; and
WHEREAS, based on the Seattle Hazard Pay for Grocery Employees Ordinance, the
CDC reports that Black and Indigenous people, followed by Pacific Islanders and Latinx people,
are disproportionately affected by COVID-19 due to long-standing inequities in social
determinants of health, including overrepresentation in jobs that require customer contact such as
grocery stores, lower incomes and barriers to wealth accumulation, lack of access to quality
healthcare and fair treatment in the healthcare system, difficulties in finding affordable and
quality housing, and inequities in access to high-quality education; and
WHEREAS, based on the Seattle Hazard Pay for Grocery Employees Ordinance, the
CDC reports that these determinants may increase risk of COVID-19 exposure, illness,
hospitalization, long-term health and social consequences, and death, and that to stop the spread
of COVID-19, the CDC states that resources must be equitably available for everyone to
maintain physical and mental health; and
WHEREAS, based on the Seattle Hazard Pay for Grocery Employees Ordinance,
Science in the News (“SITN”), a graduate student group at the Harvard Graduate School of the
Arts and Sciences, reports that it is more difficult for BIPOC communities to stay safe during the
pandemic and notes the importance of keeping these vulnerable populations in mind as the
country slowly reopens the economy, and SITN states that social distancing is a privilege that
many people of color cannot afford because they work and reside in situations with higher risk of
exposure to the virus, and people of color are more likely to live in densely populated areas,
reside in multigenerational and multifamily households, and use public transportation; and
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WHEREAS, SITN further reports that many inequalities that predated the pandemic
have worsened, including limited access for Black and Latinx communities to primary care
physicians, medical facilities, and COVID testing; and
WHEREAS, grocery businesses are profiting during the pandemic from the labor of
employees who are working under dangerous conditions; and
WHEREAS, it is rational to presume that large grocery businesses with hundreds or
thousands of employees worldwide are more likely to be in a financial position to absorb the cost
of the requirements of this ordinance than would be the case for grocery business with few
employees, and it is not the intent of this ordinance to put any business out of business; and
WHEREAS, hazard pay, paid in addition to regular wages, is an established type of
additional compensation for employees performing hazardous duties or work involving physical
hardship that can cause extreme physical discomfort and distress; and
WHEREAS, grocery employees working during the COVID-19 emergency merit hazard
pay because they are performing hazardous duty or work involving physical hardship that can
cause extreme physical discomfort and distress due to the significant risk of exposure to the
COVID-19 virus; and
WHEREAS, grocery employees have been working under hazardous conditions month
after month for over a year of the COVID-19 pandemic, and they are working in these hazardous
conditions now and will continue to face safety risks as the virus presents an ongoing threat,
including the threat of more contagious variants, for an uncertain period to time; and
WHEREAS, although grocery employees can expect to be vaccinated in the coming
months, state and national delays in vaccination efforts suggest the potential for a longer
timeline, and in the meantime, the crisis of the pandemic continues unabated and presents
extreme risks for grocery employees; and
WHEREAS, ensuring that grocery employees are compensated for the substantial risks
of working during the COVID-19 emergency promotes retention of these vital workers, and
retention of grocery employees is fundamental to protecting the health of the community as these
employees directly support public purchase of groceries and facilitate community access to food;
and
WHEREAS, this ordinance is immediately necessary in response to the COVID-19
emergency because the health threats that grocery employees face are as significant now as when
this crisis began and are growing as community transmission is already surging, and COVID-19
variants may further increase transmission of the virus and reduce therapeutic treatments, and
vaccinations are destined for a gradual rollout that could take many months for grocery
employees and much longer for the general public; and
WHEREAS, this is a rapidly evolving situation, with disproportionate risks and adverse
impacts for BIPOC communities, that must be addressed without delay; and
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WHEREAS, grocery employees are necessary to protect the public health because their
work sustains access to groceries, and hazard pay is one step to recognize the dangers facing
these employees as they support our community, encourage them to continue their vital work,
and provide them with additional financial resources; and
WHEREAS, an immediate requirement to provide grocery employees with hazard pay
promotes retention of essential workers, improves the financial ability of grocery employees to
access resources they need to stay safe and healthy, and ultimately supports the greater
community that depends on grocery employees for consistent, safe, and reliable access to food;
and
WHEREAS, Bainbridge Island is particularly susceptible to the potential spread of
COVID-19 because the island is a regional ferry and transportation hub and gateway through
which a multitude of persons travel every day and those persons interact with persons on
Bainbridge Island, including grocery workers; and
WHEREAS, Bainbridge Island is also particularly susceptible to the potential spread of
COVID-19 because the island is a well-known tourist destination that attracts tens of thousands
of tourists from the Seattle metropolitan area, the Puget Sound region, and other areas every
year, and those persons interact with persons on Bainbridge Island, including grocery workers;
and
WHEREAS, Bainbridge Island is experiencing an increasing number of tourists
currently as more persons are traveling and economic activity is opening up, and it is expected
that the number of persons coming in contact with grocery workers on Bainbridge is going to
continue to increase significantly in the coming months; and
WHEREAS, there will be a crucial period of time in which grocery workers will
continue to be highly vulnerable to COVID-19 because they will not yet be vaccinated, or they
will not yet have had the full course of vaccination treatment, or they will not yet be fully
protected by being vaccinated, and it is likely over the coming several months that many such
workers will be in contact with unvaccinated persons, some of whom may be asymptomatic with
COVID-19; and
WHEREAS, the City Council intends to consider the hazard pay requirements in this
ordinance in the coming months based on the severity of the public health crisis, including a
review of the current health, safety, and economic risks of frontline work during the COVID-19
emergency; and
WHEREAS, an emergency exists necessitating adoption of this ordinance to provide
hazard pay to certain grocery workers in order to preserve and protect public health, safety,
property, and/or welfare; and
WHEREAS, the City possesses extensive police powers under state law within the
City’s incorporated lands; and
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WHEREAS, the regulations imposed herein promote the public good and are necessary
for the protection of public health, property, safety, property, and/or welfare; and
WHEREAS, the City Council now determines that a public emergency exists requiring
that this regulation become effective immediately upon adoption.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE
ISLAND, WASHINGTON, DOES ORDAIN AS FOLLOWS:
Section 1. Findings of Fact. The recitals set forth above are hereby adopted as the City
Council’s findings of fact in support of the regulations established by this ordinance.
Section 2. Regulations Imposed. As authorized by the police powers of the City as set
forth, for example, in Article XI, Section 11, of the Washington State Constitution, and pursuant
to statutory authority set forth, for example, in RCW 35A.13.190, the City hereby imposes this
regulation, as described in this ordinance, as below described.
Section 3. Definitions.
A. “Adverse action” means reducing compensation, garnishing gratuities, denying a
job or promotion, demoting, terminating, failing to rehire after a seasonal interruption of work,
threatening, penalizing, retaliating, engaging in unfair immigration-related practices, filing a
false report with a government agency, or otherwise discriminating against any person for any
reason. “Adverse action” for an employee may involve any aspect of employment, including
compensation, work hours, responsibilities, or other material change in the terms and conditions
of employment. “Adverse action” also encompasses any action by the employer or a person
acting on the employer’s behalf that would dissuade a reasonable person from exercising any
right afforded by this ordinance.
B. “Aggrieved party” means an employee or other person who suffers tangible or
intangible harm due to an employer or other person’s violation of this ordinance.
C. “City” means the City of Bainbridge Island.
D. “Compensation” means the payment owed to an employee by reason of
employment, including but not limited to, salaries, wages, tips, service charge distributions,
overtime, commissions, piece rate, bonuses, rest breaks, promised or legislatively required pay or
paid leave, and reimbursement for employer expenses.
E. “Employ” means to suffer or permit to work.
F. “Employee” means a person who is employed for wages or salary, including, but
not limited to, a full-time employee, a part-time employee, and a temporary worker. An alleged
employer bears the burden of proof that the individual is, as a matter of economic reality, in
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business for oneself (i.e., as an independent contractor), rather than employed by the alleged
employer.
G. “Employer” means any individual, partnership, association, corporation, business
trust, or any entity, person or group of persons, or a successor thereof, that employs another
person and includes any such entity or person acting directly or indirectly in the interest of the
employer in relation to the employee. More than one entity may be the “employer” if
employment by one employer is not completely disassociated from employment by any other
employer.
H. “Grocery business” means a retail store operating in Bainbridge Island:
1. That is primarily engaged in retailing groceries for offsite consumption,
including but not limited to the sale of fresh produce, meats, poultry, fish, deli
products, dairy products, canned and frozen foods, dry foods, beverages,
baked foods, and/or prepared foods.
2. “Grocery business” does not include convenience stores or food marts
primarily engaged in retailing a limited line of goods that generally includes
milk, bread, soda, and snacks. “Grocery business” also does not include
farmers’ markets.
I. “Grocery employee” means a person employed by a grocery employer, and who
works at a grocery business in Bainbridge Island.
J. “Grocery employer” means an employer that matches the requirements in Section
4 of this ordinance.
K. “Hazard pay” means additional compensation owed to an employee on top of the
employee’s other compensation, including but not limited to salaries, wages, tips, service charge
distributions, overtime, commissions, piece rate, bonuses, rest breaks, promised or legislatively
required pay or paid leave, and reimbursement for employer expenses. The pay need not be
referred to specifically as “hazard pay” by the employer to constitute hazard pay under this
ordinance, but the pay must otherwise meet this definition.
L. “Tips” means a verifiable sum to be presented by a customer as a gift or gratuity
in recognition of some service performed for the customer by the employee receiving the tip.
Section 4. Employer Coverage.
A. For the purposes of this ordinance, “grocery employers” are those businesses that:
1. Employ at least one grocery employee who works at a grocery business
located in Bainbridge Island; and
2. Employ 500 or more employees worldwide regardless of where those
employees are employed, including but not limited to, chains, integrated
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enterprises, or franchises associated with a franchisor or network of franchises
that employ 500 or more employees in aggregate.
B. To determine the number of employees for the current calendar year for the
purposes of this section:
1. The calculation is based upon the average number of employees who worked
per calendar week during the preceding calendar year for any and all weeks
during which at least one employee worked for the grocery employer. For
employers that did not have any employees during the preceding calendar
year, the number of employees for the current calendar year is calculated
based upon the average number per calendar week of employees who worked
during the first 90 calendar days of the current year in which the grocery
employer engaged in the grocery business; and
2. All employees shall be counted, including, but not limited to:
a. Grocery employees;
b. Employees who are not grocery employees;
c. Employees who worked outside of Bainbridge Island; and
d. Employees who worked in full-time employment, part-time
employment, joint employment, temporary employment, or through
the services of a temporary services or staffing agency or similar
entity.
C. Separate entities that form an integrated enterprise shall be considered a single
employer under this ordinance. Separate entities will be considered an integrated enterprise and a
single employer under this ordinance where a separate entity controls the operation of another
entity. The factors to consider in making this assessment may include, but are not limited to:
1. Degree of interrelation between the operations of multiple entities;
2. Degree to which the entities share common management;
3. Degree of centralized control of labor relations;
4. Degree of common ownership or financial control over the entities; and
5. Use of a common brand, trade, business, or operating name.
Section 5. Employee Coverage. This ordinance applies to the time a grocery employee
performs work for a grocery employer at a grocery business location. It does not apply to time
spent by a grocery employee in Bainbridge Island solely for the purpose of travelling through
Bainbridge Island from a point of origin outside Bainbridge Island to a destination outside of
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Bainbridge Island, with no employment-related or commercial stops in Bainbridge Island except
for refueling or the employee’s personal meals or errands.
Section 6. Hazard Pay Requirements.
A. For grocery employers with 500 or more employees but less than 2,000
employees worldwide, such grocery employers shall provide each grocery employee with hazard
pay at a rate of two dollars per hour for each hour worked at the grocery employers’ grocery
business.
B. For grocery employers with 2,000 or more employees worldwide, such grocery
employers shall provide each grocery employee with hazard pay at a rate of four dollars per hour
for each hour worked at the grocery employers’ grocery business.
C. Grocery employers providing hazard pay, as defined under Section 3, on the
effective date of this ordinance may use the hourly rate of that hazard pay to offset the amount
due under this subsection.
D. Grocery employers shall provide written notice of employment information that
includes notice of hazard pay by 30 days after the effective date of this ordinance. The notice of
employment information shall include notice of any hazard pay offset available under this
subsection.
E. Grocery employers shall provide payment for hazard pay on the established,
regular pay day on which wages are paid.
F. Grocery employers shall provide written itemization of the hazard pay separately
from payment for wages and other compensation.
G. Grocery employers shall comply with the hazard pay requirements in this
ordinance until this ordinance is terminated or repealed as set forth herein.
Section 7.
A. Within 30 days of the effective date of this ordinance, grocery employers shall
display a written notice of rights established by this ordinance in a conspicuous and accessible
place at all its grocery businesses. Grocery employers shall display the notice of rights in English
and in the primary language or languages of the employee or employees at its grocery
businesses.
B. The notice of rights shall provide information on:
1. The right to hazard pay guaranteed by this ordinance;
2. The right to be protected from retaliation for exercising in good faith the
rights protected by this ordinance; and
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3. The right to bring a civil action for a violation of this ordinance, including a
grocery employer’s denial of hazard pay as required by this ordinance and a
grocery employer or other person’s retaliation against a grocery employee or
other person for asserting the right to hazard pay or otherwise engaging in an
activity protected by this ordinance.
Section 8.
A. Grocery employers shall retain records that document compliance with this
ordinance for each grocery employee.
B. Grocery employers shall retain the records required by this section for three (3)
years.
C. If a grocery employer fails to retain adequate records required under this section,
there shall be a presumption, rebuttable by clear and convincing evidence, that the grocery
employer violated this ordinance for the periods and for each grocery employee for whom
records were not retained.
Section 9.
A. A grocery employer or any other person shall not interfere with, restrain or deny
the exercise of, or the attempt to exercise, any right protected under this ordinance.
B. A grocery employer or any other person shall not take any adverse action against
any person because the person has exercised in good faith the rights protected under this
ordinance. The rights include, but are not limited to:
1. The right to make inquiries about the rights protected under this ordinance;
2. The right to inform others about their rights under this ordinance;
3. The right to inform the person’s employer, the person’s legal counsel, a union
or similar organization, or any other person about an alleged violation of this
ordinance;
4. The right to bring a civil action for an alleged violation of this ordinance;
5. The right to testify in a proceeding under or related to this ordinance;
6. The right to refuse to participate in an activity that would result in a violation
of city, state, or federal law; and
7. The right to oppose any policy, practice, or act that is unlawful under this
ordinance.
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C. A grocery employer or any other person shall not communicate to a person
exercising rights protected in this section, directly or indirectly, the willingness to inform a
government worker that the person is not lawfully in the United States, or to report, or to make
an implied or express assertion of a willingness to report, suspected citizenship or immigration
status of an employee or family member of an employee to a federal, state, or local agency
because the employee has exercised a right under this ordinance.
D. It shall be a rebuttable presumption of retaliation if a grocery employer or any
other person takes an adverse action against a person within ninety (90) days of the person’s
exercise of rights protected in this section. However, in the case of seasonal work that ended
before the close of the ninety-day period, the presumption also applies if the grocery employer
fails to rehire a former grocery employee at the next opportunity for work in the same position.
The grocery employer may rebut the presumption with clear and convincing evidence that the
adverse action was taken for a permissible purpose.
E. Proof of retaliation under this section shall be sufficient upon a showing that a
grocery employer or any other person has taken an adverse action against a person and the
person’s exercise of rights protected in this section was a motivating factor in the adverse action,
unless the grocery employer can prove that the action would have been taken in the absence of
the protected activity.
F. The protections afforded under this section shall apply to any person who
mistakenly but in good faith alleges violations of this ordinance.
G. A complaint or other communication by any person triggers the protections of this
section regardless of whether the complaint or communication is in writing or makes explicit
reference to this ordinance.
Section 10. Any aggrieved party or any entity acting on behalf of an aggrieved party
may bring a civil action in a court of competent jurisdiction against the grocery employer or
other person violating this ordinance and, upon prevailing, may be awarded reasonable attorney
fees and costs and such legal or equitable relief as may be appropriate to remedy the violation
including, without limitation: the payment of any unpaid compensation plus interest due to the
aggrieved party and liquidated damages in an additional amount of up to twice the unpaid
compensation; and a penalty payable to any aggrieved party if the aggrieved party was subject to
prohibited retaliation. Interest shall accrue from the date the unpaid compensation was first due
at twelve percent per annum, or the maximum rate permitted under RCW 19.52.020.
Section 11. Any waiver by an individual of any provision of this ordinance shall be
deemed contrary to public policy and shall be void and unenforceable.
Section 12.
A. Nothing in this ordinance shall be construed to discourage or prohibit an employer
from adopting or retaining hazard pay policies more generous than the one required.
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B. Nothing in this ordinance shall be construed as diminishing the obligation of the
employer to comply with any contract, collective bargaining agreement, employment benefit
plan, or other agreement providing more generous hazard pay policies to an employee than
required in this ordinance.
Section 13.
A. This ordinance provides minimum requirements for hazard pay for grocery
employees during the COVID-19 emergency and shall not be construed to preempt, limit, or
otherwise affect the applicability of any other law, regulation, requirement, policy, or standard
that provides for hazard pay or that extends other protections to employees; and nothing in this
ordinance shall be interpreted or applied so as to create any power or duty in conflict with federal
or state law.
B. Nothing in this section shall be construed as restricting an employee’s right to
pursue any other remedies at law or equity for violation of the employee’s rights.
Section 14. Interpretive Authority. The City of Bainbridge Island City Manager, or
designee, is hereby authorized to issue official interpretations arising under or otherwise
necessitated by this ordinance.
Section 15. Severability. Should any section, paragraph, sentence, clause, or phrase of
this ordinance, or its application to any person or circumstance, be declared unconstitutional or
otherwise invalid for any reason, or should any portion of this ordinance be preempted by state
or federal law or regulation, such decision or preemption shall not affect the validity of the
remaining portions of this ordinance or its application to other persons or circumstances.
Section 16. Declaration of Emergency; Effective Date. This ordinance, which the City
Council hereby regards as a public emergency ordinance necessary for the protection of the
public health, public safety, public property, and/or public peace, shall take effect and be in full
force immediately upon its adoption. Pursuant to Matson v. Clark County Board of
Commissioners, 79 Wn. App. 641 (1995), non-exhaustive underlying facts necessary to support
this emergency declaration are included in the “Whereas” clauses above, all of which are
adopted by reference as findings of fact as if fully set forth herein. This ordinance or a summary
thereof consisting of the title shall be published in the official newspaper of the City.
Section 17. Termination or Repeal of Ordinance. The City Council shall determine,
based on criteria that are rationally related to the purpose of this ordinance, when the ordinance
will be terminated or repealed. In making its determination of termination or repeal, the Council
will be informed by the criteria used by the City Manager and the Council as relates to
terminating the City Manager’s March 9, 2020, Proclamation of Emergency, as well as in
relation to terminating Resolution No. 2020-06 as adopted by the Council, which ratified and
affirmed the City Manager’s Proclamation of Emergency.
Page 15 of 15
PASSED by the City Council this 23rd day of March, 2021.
APPROVED by the Mayor this 23rd day of March, 2021.
ATTEST/AUTHENTICATE:
FILED WITH THE CITY CLERK: March 19, 2021
PASSED BY THE CITY COUNCIL: March 23, 2021
PUBLISHED: March 26, 2021
EFFECTIVE DATE: March 23, 2021
ORDINANCE NUMBER: 2021-13