§ 5.92.050. Enforcement.

A.

Retaliation.

1.

A Person shall not discharge, reduce the compensation of nor otherwise discriminate against any Person for making a complaint to the City, participating in any of its proceedings, using any civil remedies to enforce his or her rights, or otherwise asserting his or her rights under this Chapter. Within one hundred twenty (120) days of an Employer being notified of such activity, it shall be unlawful for the Employer to discharge any Employee who engaged in such activity unless the Employer has clear and convincing evidence of just cause for such discharge.

2.

No Employer may fund increases in compensation required by this Chapter, nor otherwise respond to the requirements of this Chapter, by reducing the compensation of any non-management Employees nor by reducing the pension, vacation, or other non-wage benefits of any such Employees, nor by increasing charges to them for parking, meals, uniforms or other items. If an Employer makes such adverse changes after the filing of the notice to circulate the petition giving rise to this Chapter but before this Chapter has become effective, then upon this Chapter's effective date, such Employer shall restore the conditions of the status quo ante.

B.

Waiver. Any waiver by an individual Employee of any of the provisions of this Chapter shall be deemed contrary to public policy and shall be void and unenforceable, except that Employees shall not be barred from entering into a written valid collective bargaining agreement waiving a provision of this Chapter if such waiver is set forth in clear and unambiguous terms. Any request to an individual Employee by an Employer to waive his or her rights under this Chapter shall constitute a violation of this Chapter.

C.

Retention of Records. Each employer shall maintain for at least three (3) years for each employee a record of his or her name, hours worked, pay rate, paid sick leave accrual and usage, and service charge collection and distribution. Each employer shall provide each employee or his or her representative a copy of the records relating to such employee upon the employee's or representative's reasonable request, except that the employees' names (and any addresses and social security numbers) shall be redacted unless the requester is an employee requesting his or her own records. Where an employer does not maintain or retain adequate records documenting wages paid or does not allow reasonable access to such records, it shall be presumed in any administrative or judicial enforcement proceeding to enforce the provisions of this Chapter that the employer paid the employee no more than the applicable federal or state minimum wage, absent clear and convincing evidence otherwise.

D.

Notice to Employees. Each Employer shall give written notification to each current Employee and to each new Employee at time of hire, of his or her rights under this Chapter. The notification shall be in all languages spoken by a more than 10% of the Employees, and shall also be posted prominently in areas at the work site where it will be seen by all Employees. The City Administrator is authorized to prepare sample notices and Employer use of such notices shall constitute compliance with this subsection.

E.

City Access. Each Employer shall permit access to work sites and relevant records for authorized City representatives for the purpose of monitoring compliance with this Chapter and investigating employee complaints of noncompliance, including production for inspection and copying of its employment records, but without allowing social security numbers to become a matter of public record.

F.

City Authorized to Consider Compliance. City officials are hereby authorized to consider, to the maximum extent permitted by law, an Employer's record of noncompliance with this Chapter in making City decisions on City contracts and land use approvals and other entitlements to expand or operate within the City. The City is authorized to either deny approval or include conditions for approval ensuring future compliance by investigating complaints of noncompliance with this Chapter and rendering City decisions on the merits of such complaints. The City is authorized to award the same relief in its proceedings as a court may award. Pursuit of such administrative remedy shall not be a prerequisite for pursuing a private action under this Chapter.

G.

Enforcement Procedures.

1.

Enforcement Priority. It is the policy of the City of Oakland that all employees be compensated fairly according to the law and that employers who engage in wage theft be held accountable.

2.

Administrative Enforcement.

a.

The City is authorized to take appropriate steps to enforce this Chapter. The City may investigate any possible violations of this Chapter by an employer or other person and, where the City has reason to believe that a violation has occurred, it may order appropriate temporary or interim relief to mitigate the violation or maintain the status quo pending completion of a full investigation or hearing.

b.

Where the City, after a hearing that affords a suspected violator due process, determines that a violation has occurred, it may order any appropriate relief, including, but not limited to, reinstatement, the payment of any back wages unlawfully withheld, and the payment of an additional sum as an administrative penalty in the amount of fifty dollars ($50.00) to each employee or person whose rights under this Chapter were violated for each day that the violation occurred or continued. A violation for unlawfully withholding wages or service charges shall be deemed to continue from the date immediately following the date that the sums were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date immediately preceding the date the sums are paid in full. Where prompt compliance is not forthcoming, the City may take any appropriate action to secure compliance, including initiating a civil action pursuant to Section 5.92.050(G)(3), and, except where prohibited by state or federal law, requesting that City agencies or departments revoke or suspend any registration certificates, permits, or licenses held or requested by the employer or person until such time as the violation is remedied. All City agencies and departments shall cooperate with such revocation or suspension requests. In order to compensate the City for the costs of investigating and remedying the violation, the City may also order the violating employer or person to pay to the City a sum of not more than fifty dollars ($50.00) for each day and for each employee or person as to whom the violation occurred or continued. Such funds shall be allocated to the City and shall be used to offset the costs of implementing and enforcing this Chapter and, on and after July 1, 2020, other laws under the jurisdiction of the Department of Workplace and Employment Standards. The amounts of all sums and payments authorized or required under this Section shall be updated annually for inflation, beginning January 1, 2019, using the inflation rate and procedures set forth in Section 5.92.020(B).

c.

An employee, representative of employees, or other person may report in writing any suspected violation of this Chapter to the City. The City shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the person reporting the violation and any employee whose name is included in the report. Provided, however, that with the written authorization of such person, the City may disclose his or her name and identifying information as necessary to enforce this Chapter or for any other appropriate purpose. In order to further encourage reporting by employees, if the City notifies an employer that the City is investigating a complaint, the City shall require the employer to post or otherwise inform its employees that the City is conducting an investigation, using a form provided by the City.

3.

Civil Enforcement. The City, the City Attorney, any person aggrieved by a violation of this Chapter, any entity a member of which is aggrieved by a violation of this Chapter, or any other person or entity acting on behalf of the public as provided for under applicable state law, may bring a civil action in a court of competent jurisdiction against the employer or other person violating this Chapter and, upon prevailing, shall be entitled to all remedies available to remedy any violation of this Chapter, including but not limited to back pay, reinstatement and/or injunctive relief, and the payment of an additional sum as penalty in the amount of fifty dollars ($50.00) to each employee or person whose rights under this Chapter were violated for each day that the violation occurred or continued, up to a maximum of one thousand dollars ($1,000.00) per employee or aggrieved person. Violations of this Chapter are declared to irreparably harm the public and covered employees generally. The court shall award reasonable attorney's fees, witness fees and expenses to any plaintiff who prevails in an action to enforce this Chapter. Provided that any person or entity enforcing this Chapter on behalf of the public shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief, and reasonable attorneys' fees and costs. No criminal penalties shall attach for any violation of this Chapter, nor shall this Chapter give rise to any cause of action for damages against the City.

H.

Interest. In any administrative or civil action brought for the non-payment of wages or service charge distributions under this Chapter, the City or court, as the case may be, shall award interest on all due and unpaid sums at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the date the sums were due and payable, as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date the sums are paid in full.

I.

No Preemption of Higher Standards. The purpose of this Chapter is to ensure minimum labor standards. This Chapter does not preempt or prevent the establishment of superior employment standards (including higher wages) or the expansion of coverage by ordinance, resolution, contract, or any other action of the City or Port of Oakland. This Chapter shall not be construed to limit a discharged employee's right to bring a common law cause of action for wrongful termination.

J.

Severability. If any provision or application of this Chapter is declared illegal, invalid or inoperative, in whole or in part, by any court of competent jurisdiction, the remaining provisions and portions thereof and applications not declared illegal, invalid or inoperative shall remain in full force or effect. The courts are hereby authorized to reform the provisions of this Chapter in order to preserve the maximum permissible effect of each subsection herein. Nothing herein may be construed to impair any contractual obligations of the Port or City of Oakland. This Chapter shall not be applied to the extent it will cause the loss of any federal or state funding of City or Port activities.

K.

Department of Workplace and Employment Standards. On and after July 1, 2020, the Department of Workplace and Employment Standards shall enforce this Chapter, and shall have authority to take any action permitted of the City in this Section.

L.

Regulations. The City and, on and after July 1, 2020, the Department of Workplace and Employment Standards, may promulgate and enforce rules and regulations, and issue determinations and interpretations, consistent with and necessary for the implementation of this Chapter. Such rules and regulations, determinations and interpretations shall have the force of law and may be relied upon by employers, employees, and other persons to determine their rights and responsibilities under this Chapter.

(Res. No. 87287, § 4, 7-24-2018; Res. No. 85300, 12-9-2014)