Last year, the Council heard testimony from local residents and workers who expressed concerns that the wages paid to many workers in the City, particularly those employed in hotels and restaurants, are insufficient to meet the basic needs of the workers and their families. In response, the Council discussed the possibility of adopting a Aliving wage@ ordinance which would require that employees working in all or part of the City be paid a minimum wage significantly higher than the minimum wage levels set by federal and state law. Public testimony on this issue was sharply divided. Supporters urged that the City must adopt such an ordinance in order to promote social justice by ensuring that workers and their families have the income to feed, shelter and clothe themselves adequately. Opponents claimed that such an ordinance would threaten the survival of some local businesses, actually diminish job opportunities for low-paid workers, and threaten the City=s economy. The Council concluded that the impacts of such an ordinance should be studied. A consultant was hired, and that study is underway.

Meanwhile, within the last month, a private club in the coastal zone has reportedly discharged 30 employees who worked for the club as housekeepers, dishwashers and laundry and locker room attendants. The club apparently contends that the workers were laid off as part of a plan to reduce expenses and gain flexibility by contracting for these services. The workers apparently contend that they were fired because a number of them have spoken out in favor of the adoption of a Aliving wage,@ and they note that every worker who supported the Aliving wage@ was discharged. The Council directive was made in response to the workers= contentions.

State law already protects workers= rights to engage in political activities. Labor Code Section 1101, entitled APolitical activities of employees; prohibition of prevention or control by employer,@ provides that:

ANo employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.@

Additionally, Labor Code Section 1102, entitled ACoercion of political activities of employees@ provides that :

ANo employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.@

Labor Code Section 1103 makes violation of these Sections a crime. It specifies that A[a]ny employer who violates this chapter is guilty of a misdemeanor punishable in the case of an individual, by imprisonment in the county jail not to exceed one year or a fine of not to exceed $1000 or both and, in the case of a corporation, by a fine of not to exceed $5000.@ Additionally, Section 1104 establishes that the responsibility for violations falls upon employers. It specifies that A[i]n all prosecutions under this chapter, the employer is responsible for the acts of his managers, officers, agents, and employees.@

Additionally, the Labor Code also establishes civil remedies for violations of Sections 1101 and 1102. Section 1105 provides A[n]othing in this chapter shall prevent the injured employee from recovering damages from his [sic] employer for injury suffered through a violation of this chapter.@ Additionally, California case law makes clear that workers may sue civilly under Sections 1101 and 1102. See Lockheed Aircraft Corp v. Superior Court, 28 Cal.2d 481 (1946) [upholding constitutionality of Section 1101 and specifically recognizing an employee=s right of action for damages].

The leading California case on Sections 1101 and 1102 is Gay Law Students Ass=n. v. Pacific Tel. & Tel. Co., 24 Cal.3d 458 (1979). In that case, individuals and associations sued PT&T claiming that it discriminated against homosexuals. PT&T responded with the claim that, even if it had adopted the alleged policy of discrimination, California law did not bar such discrimination. The trial court agreed with PT&T. The California Supreme Court reversed the trial court=s judgment as to PT&T, holding that the complaint stated a cause of action under provisions of state law applicable to utilities and also under Labor Code Sections 1101 and 1102. The Court explained, A[t]hese sections serve to protect the fundamental right of employees in general to engage in political activity without interference by employers.@ Id. at 437. The Court added that the statutes Acannot be narrowly confined to partisan activity.@ Id.

Thus, the statutory language and case law establish that any California employer who discharges or lays off an employee in retaliation for that employee=s political activities could be subject to criminal prosecution and civil liability under Labor Code Section 1102. Moreover, any employer who had a policy of taking punitive action against employees in response to their political activities would be similarly liable under Section 1101.

In addition to the protections afforded by state law, federal law also protects employees= rights to strive to improve the terms and conditions of their work. Of course, federal law establishes comprehensive protections for organization and collective bargaining. 29 U.S.C. Section 157. However, federal law also protects the right of employees to Aengage in other concerted activities for the purpose of ... mutual aid or protection.@ Id. This protection applies when an employee enlists the support of his or her fellow employees for a wage increase for their mutual benefit. N.L.R.B. v. Sencore, Inc., 558 F.2d 433 (1977).

Thus, state and federal law already establish protections for workers= expressions of political viewpoints.

If the Council feels that additional legislation is necessary, local legislation could be adopted to address any gaps present in existing law. For instance, Labor Code Section 1101 applies in the situation where the employer has a Apolicy@ of controlling employees= political activities. Section 1102 applies when an employer uses a Athreat of discharge or loss of employment@ to coerce employees. Federal law requires Aconcerted action.@ In situations where no policy can be proven, the employer makes no threat, and workers are not acted against in concert, existing protections may not apply. Thus enforcement B particularly criminal enforcement B would be problematic.

Accordingly, the Council may wish to adopt a prohibition against any employer retaliation against an employee for advocating for or against a minimum wage or benefit law. However, the Council should bear in mind that such a law would have its own enforcement problems. Retaliation may be difficult to establish, particularly where the employer can either establish performance problems on the part of the employee or an economic motivation for the employer=s action. Establishing a violation would, of course, be most challenging in the criminal context, where the proof standard is highest.

Local employers may or may not be aware of the provisions of state and federal law, and one option available to the Council is acting to enhance employers= awareness of workers= rights. Educating local employers about these protections may serve to avert violations. The City could initiate mailings and/or workshops at a nominal expense.

Additionally, if the Council is concerned that workers will not have the information and support necessary to pursue their rights and remedies under federal and state law, a grant could be made to the Legal Aid Foundation for that purpose. The City Attorney=s Office could provide information and referrals to Legal Aid.

It is respectfully recommended that the Council institute an educational program for local employers so that they will be aware of employees= rights to express their political views. If the Council also wishes to adopt local legislation prohibiting retaliation for such activities, the attached emergency ordinance may be adopted.

ATTACHMENT:  PROPOSED ORDINANCE