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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 Page 2 of 15 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 Page 3 of 15 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, Page 4 of 15 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 Page 5 of 15 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 Page 6 of 15 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 Page 7 of 15 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 Page 8 of 15 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 Page 9 of 15 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 Page 10 of 15 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 Page 11 of 15 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 Page 12 of 15 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. Page 13 of 15 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. Page 14 of 15 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