Mandates in Long Beach and other cities violate National Labor Relations Act and equal protection clauses in U.S. and California Constitutions

The California Grocers Association (CGA) today filed a lawsuit against the City of Long Beach to challenge an Ordinance approved by the Long Beach City Council last evening mandating an additional $4/hour in extra pay for a select group of grocery store employees. The lawsuit, filed in Los Angeles federal court, asks the court to declare the Ordinance invalid and unconstitutional.

CGA also is seeking a preliminary injunction to stop implementation of the law until a judge can rule on the merits of its lawsuit.

The CGA lawsuit alleges the City of Long Beach Ordinance is illegal in two main ways: 1) By singling out certain grocers and ignoring other groups that employ essential frontline workers, the Ordinance violates the U.S. Constitution and the California Constitution’s Equal Protection Clauses, which require similarly situated people to be treated alike; and 2) the Ordinance is preempted by the federal National Labor Relations Act, which protects the integrity of the collective-bargaining process.

“Grocery store workers are frontline heroes, and that’s why grocers have already undertaken a massive effort to institute measures to make both workers and customers safer in stores. But this Ordinance is clearly illegal in that it interferes with the collective-bargaining process and singles out only certain grocers while ignoring other retail workers and workers in other industries providing essential services during the pandemic,” said Ron Fong, President and CEO of the California Grocers Association. “Firefighters, police officers, health care workers, as well as transportation, sanitation, and restaurant workers are essential, yet grocers are the only businesses being targeted for extra pay mandates. We look forward to our day in court to contest the legality of this Ordinance.”

The Long Beach Ordinance also completely ignores the continued low profit margins and significant operational costs traditional grocers have incurred in response to the pandemic, including the hiring of tens of thousands of employees in Los Angeles County alone.

“This Ordinance could lead to higher grocery prices and severely limit store viability – resulting in limited store operating hours, reduced hours for employees, fewer employment opportunities, and most concerning, possible store closures,” concluded Fong. “These negative impacts would be felt most acutely by customers and workers in low-income and disadvantaged communities.”

In a letter to the Long Beach Mayor and City Council, the CA Grocers Association lawyers outline two principle claims explaining why the Ordinance is unlawful:

  • The Ordinance violates the U.S. Constitution and California Constitution’s Equal Protection Clauses.  The Ordinance unfairly targets traditional grocery companies and arbitrarily subjects certain grocers to the Premium Pay mandate while sparing other generic retailers who also employ frontline workers and who also sell groceries. Absent from the Ordinance is any requirement that would address its stated purpose of promoting the public’s health and safety. Put simply, there is a disconnect between the Ordinance’s reach and its stated purpose, making it unlawful and violative of the equal protection rights of CGA’s members.
  • The Ordinance would improperly insert the City of Long Beach into the middle of the collective bargaining process protected by the federal National Labor Relations Act. While the City has the power to enact ordinances to further the health and safety of its citizens, it is prohibited from interfering directly in employers’ and their employees’ bargaining process by arbitrarily forcing certain grocers to provide Premium Pay that is both unrelated to minimum labor standards or the health and safety of the workers and the general public.

On Tuesday the LA Times editorialized against the Long Beach and similar mandates pending in Los Angeles City and County, Santa Monica and Santa Ana, noting, “Government shouldn’t be picking winners and losers, or who deserves ‘hero pay’ and who doesn’t. The hazard pay proposals are not fair to all essential workers, and they may not be legal.”

A coalition of grocers, small businesses, and community groups also opposed the Long Beach Ordinance in a letter submitted to the Long Beach City Council last week. The coalition letter similarly concludes that “these ordinances are rushed and not adequately researched” and that “extra pay mandates will not make grocery workers any safer.”