4-37
HEALTHCARE WORKERS
4-37.1 Findings And Purposes:
This section, adopted by the city of Lynwood, makes the following findings and has the following purposes:
The purpose of this section is to establish a minimum wage for covered healthcare workers within the city of Lynwood.
The city of Lynwood needs a sufficient healthcare workforce to ensure that life-saving healthcare facilities including hospitals, health systems, and dialysis clinics offer consistent, timely, high-quality care. Workers at acute care facilities provide vital services including emergency care, labor and delivery, cancer treatments, and primary and specialty care. Similarly, dialysis clinic workers provide life-preserving care to patients with end-stage renal disease and are part of the continuum of kidney care that also includes hospitals and health systems. Hospitals, health systems, and dialysis clinics are facing staffing shortages that could jeopardize the availability of care in our city. Even before the COVID pandemic, California was facing an urgent and immediate shortage of healthcare workers, adversely impacting the health and well-being of Californians, especially economically disadvantaged Californians. The COVID-19 pandemic has worsened these shortages. Healthcare job vacancies are rising as workers on the frontlines deal with the emotional, mental, and physical fallout of providing healthcare during a pandemic. Workforce shortages across industries also mean that the healthcare industry is competing with other economic sectors to fill critical nonclinical positions such as for cleaning staff, food service workers, and IT administrators. With rising housing costs, healthcare workers are being forced to live further from their places of work, increasing their stress and leading to retention challenges. While healthcare workers at hospitals, health systems, and dialysis clinics are experiencing unprecedentedly difficult working conditions and burnout, the companies running these facilities have made millions, and in some instances billions, in profits during the pandemic and many CEOs were paid compensation packages in the millions. These healthcare facilities need to fairly compensate workers who are sacrificing every day to care for their patients. Raising the minimum wage in Lynwood will help address retention challenges and workforce shortages which negatively impact care for vulnerable patients receiving life-saving, complex care in settings such as emergency rooms, operating rooms, and dialysis clinics, and will help to ensure that large healthcare corporations are maintaining a robust workforce able to meet the challenges affecting our community. (Ord. #1756, §3)
4-37.2 Definitions:
The following definitions shall apply to this chapter:
a. City means the city of Lynwood.
b. Covered healthcare worker means an employee who is employed to work at or by a covered healthcare facility to provide patient care, healthcare services, or services supporting the provision of healthcare. “Covered healthcare worker” includes a clinician, professional, nonprofessional, nurse, certified nursing assistant, aide, technician, maintenance worker, janitorial or housekeeping staff person, groundskeeper, guard, food service worker, laundry worker, pharmacist, administrative worker and business office clerical worker. A “covered healthcare worker” works at a covered healthcare facility only if that individual’s primary place of employment is physically located at one or more such facilities or work sites; for example, delivery workers employed primarily outside a covered healthcare facility are not covered healthcare workers for purposes of this chapter unless employed by a person that owns, controls or operates a covered healthcare facility.
c. Covered healthcare facility means the following types of facilities or work sites; provided, that they are privately owned and are located within the boundaries of the city:
1. A licensed general acute care hospital as defined in section 1250(a) of the California Health and Safety Code, including a distinct part of any such hospital.
2. A clinic, as defined in section 1206(d) of the California Health and Safety Code, that is conducted, operated, or maintained as an outpatient department of a general acute care hospital.
3. A licensed chronic dialysis clinic as described in section 1204(b)(2) of the California Health and Safety Code.
4. A facility or other work site that is part of an integrated healthcare delivery system.
d. Covered physician group means a medical group practice, including a professional medical corporation as defined in section 2406 of the California Business and Professions Code, another form of corporation controlled by physicians and surgeons, a medical partnership, or an independent practice association; provided, that the group includes a total of ten (10) or more physicians.
e. Employ means to engage, suffer, or permit to work.
f. Employee means any person employed by any employer.
g. Employer means any person, including a corporate officer or executive, who directly or indirectly or through any other person, including through the services of a temporary service, staffing agency, or similar entity, employs or exercises control over the wages, hours or working conditions of any employee.
h. Integrated healthcare delivery system means an entity or group of related entities that includes both of the following: (1) one or more hospitals and (2) one or more covered physician groups, health care service plans, medical foundation clinics, other facilities, or other entities, providing health care or supporting the provision of health care where the hospital or hospitals and other entities are related through:
1. Parent/subsidiary relationships, joint or common ownership or control, common branding, or common boards of directors and shared senior management; or
2. A contractual relationship in which affiliated covered physician groups or medical foundation clinics contract with a health care service plan, hospital or other part of the system, all operating under a common trade name; or
3. A contractual relationship in which a nonprofit health care service plan provides medical services to enrollees in a specific geographic region of the state through an affiliated hospital system, and contracts with a single covered physician group in each geographic region of the state to provide medical services to a majority of the plan’s enrollees in that region.
i. Minimum wage means the minimum amount that must be paid to covered healthcare workers as compensation for their labor, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. “Minimum wage” does not include bonuses, shift differentials, premium pay, reimbursement or allowances for work-related equipment or other expenses, credits for meals or lodging, tips, gratuities, or the cost of medical, dental, retirement or similar benefits.
j. Person means an individual, corporation, partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign. (Ord. #1756, §3)
4-37.3 Payment Of Minimum Wage To Covered Healthcare Workers:
a. An employer shall ensure that each covered healthcare worker employee is paid a minimum wage equivalent to no less than the hourly rate set forth herein or under the authority of this chapter for hours worked within the geographic boundaries of the city.
b. The minimum wage for covered healthcare workers shall be as follows:
1. On the effective date of this section, the minimum wage shall be not less than twenty-five dollars ($25.00) per hour for all hours worked as a covered healthcare worker.
2. One year (three hundred sixty-five (365) days) after the date this section takes effect, and annually thereafter on the same date, the minimum wage shall increase based on the annual increase in the cost of living for the preceding twelve (12) months, as measured by the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for the Los Angeles metropolitan area (Los Angeles-Long Beach-Anaheim, CA), which is published by the Bureau of Labor Statistics. If the change to the cost of living over the applicable twelve (12) months is negative, the minimum wage shall not increase or decrease. The city shall annually publish a bulletin announcing the adjusted minimum wage.
c. An employer may not fund the minimum wage increases required by this section in any of the following ways:
1. Reducing covered healthcare workers’ premium pay rates or shift differentials;
2. Reducing vacation, healthcare, or other non-wage benefits of any covered healthcare worker;
3. Reducing covered healthcare workers’ hours of work;
4. Laying off covered healthcare workers; or
5. Increasing charges to any covered healthcare worker for parking, work- related materials or equipment.
d. An employer is in violation of subsection 4-37.3c if the minimum wage requirements of this chapter are a motivating factor in the employer’s decision to take any of the actions described in subsection 4-37.3c, unless the employer proves that it would have taken the same action at the time that it did irrespective of the operation of this section. (Ord. #1756, §3)
4-37.4 Retaliation:
No employer shall discharge, terminate a contract with, reduce compensation to, or otherwise discriminate against or take adverse action against any covered healthcare worker for opposing any practice proscribed by this section, for participating in proceedings related to this section, for seeking to enforce rights under this section by any lawful means, or for otherwise asserting rights under this chapter. Protections of this subsection shall apply to any covered healthcare worker who mistakenly, but in good faith, alleges noncompliance with this section. Taking any adverse action against a covered healthcare worker within ninety (90) days of the covered healthcare worker’s exercise of rights protected under this section shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights. (Ord. #1756, §3)
4-37.5 Posting And Payroll Records:
Covered healthcare facilities shall post in a conspicuous place a notice of the current minimum wage for covered healthcare workers required by this section. Employers of covered healthcare workers shall retain payroll records pertaining to covered healthcare workers for a minimum of four (4) years, and shall allow the city or its designee access to such records, with appropriate notice and during business hours, to monitor compliance with the requirements of this section. (Ord. #1756, §3)
4-37.6 Enforcement And Implementation:
a. The city shall have responsibility for enforcement of this section, including, at a minimum:
1. Establishing a process for reporting complaints of violations of this section.
2. Establishing and implementing processes for investigating complaints and other possible violations of this section. Employers and covered healthcare facilities shall cooperate fully in any such investigation.
3. Establishing and implementing an administrative citation process that may include the issuance of correction orders, a hearing and appeal process, and the imposition of administrative fines.
4. Taking appropriate enforcement action through the administrative citation process, civil actions, or other approaches on behalf of covered healthcare workers, collecting back wages and any other amounts owed to covered healthcare workers, and disbursing them to covered healthcare workers.
5. Conducting any other education and enforcement activities necessary to ensure compliance with this section.
b. The city is authorized to promulgate rules and regulations and issue determinations and interpretations relating to this section that are consistent with its purposes.
c. The city may seek to enter into an agreement with the department of consumer and business affairs of the county of Los Angeles to allow the county’s wage enforcement program to provide wage enforcement and education services necessary for enforcement of this section. If the city and county enter into such an agreement, it may include any services necessary to carry out the enforcement and education responsibilities and activities described in subsection 4-37.6a or pursuant to rules and regulations relating to this section.
d. A covered healthcare worker, a representative of a covered healthcare worker, the city attorney, or another person 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 an employer violating this section. If the city, a covered healthcare worker, or a representative of a covered healthcare worker prevails in the action, the court shall impose all remedies available under the law or in equity, including injunctive or other equitable relief, reinstatement, the payment of any wages unlawfully withheld, the payment of penalties in the amount of up to one hundred twenty dollars ($120.00) to each covered healthcare worker for each day that a violation occurred or continued, and reasonable attorneys’ fees and costs. For retaliatory action by the employer, the covered healthcare worker shall be entitled to reinstatement and a trebling of all wages and penalties owed. Any other person enforcing this section on the public’s behalf, upon prevailing, shall be entitled to an award of only equitable, injunctive, and/or restitutionary relief, and reasonable attorneys’ fees and costs. (Ord. #1756, §3)
4-37.7 No Waiver Of Rights:
Any waiver by a covered healthcare worker of any or all of the provisions of this section or of rights or protections afforded under the authority of this section shall be deemed contrary to public policy and shall be void and unenforceable. (Ord. #1756, §3)
4-37.8 Coexistence With Other Available Relief:
The provisions of this section shall not be construed as limiting any covered healthcare worker’s right to obtain relief to which the covered healthcare worker may be entitled at law or in equity. (Ord. #1756, §3)
4-37.9 One-Year Court-Granted Waiver:
This section is not intended to cause reduction in employment or work hours for covered healthcare workers. Therefore, a court may grant a one-year waiver from the minimum wage requirements of this section if an employer can demonstrate by substantial evidence that compliance with this section would raise substantial doubt about the employer’s ability to continue as a going concern under generally accepted accounting standards. The evidence must include documentation of the employer’s financial condition, as well as the condition of any parent or affiliated entity, and evidence of the actual or potential direct financial impact of compliance with this section. A one-year waiver granted by a court pursuant to this subsection does not exempt an employer from complying with any and all federal, state, or local laws and regulations, including any other applicable federal, state, or local minimum wage requirement. (Ord. #1756, §3)
4-37.10 Conflicts:
Nothing in this section shall be interpreted or applied so as to create any power or duty in conflict with any federal or state law. (Ord. #1756, §3)
4-37.11 Severability:
If any subsection, sentence, clause, phrase, or provision of this chapter is found invalid or unconstitutional by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect. (Ord. #1756, §3)