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NOTICE OF INTENT TO CIRCULATE PETITION
Notice is hereby given of the intention of the person whose name appears hereon to circulate a petition within the City of San Diego for the purpose of amending City law to provide increased wages and other protections for employees working in the City.
I. San Diego Municipal Code, Chapter 2, Article 2, is amended by adding Division 46, to read as follows:Section 22.4601 Purpose and Intent
The People of the City of San Diego believe it is proper to set a minimum wage which requires all private employers to pay their employees a wage that will enable full-time workers to meet basic needs and avoid economic hardship. Paying employees a sustainable wage is intended to improve the quality of life for employees and to reduce high turnover, absenteeism, and instability in the workplace. This Division also promotes the Citys policies and programs that seek to meet the employment and economic development needs of the City and its workforce. Section 22.4602 Citation
This Division shall be cited as the City of San Diego Minimum Wage Ordinance. Section 22.4603 Definitions
Each word or phrase that is defined in this Division appears in the text of this Division in italicized letters. For purposes of this Division, the following definitions shall apply:
means any corporation, partnership, limited liability corporation, joint venture, sole proprietorship, association, or trust, other than a public entity.
means the City of San Diego.
means any individual employed on a full-time, part-time, temporary, or seasonal basis within the geographic boundaries of the City who qualifies as an employee entitled to payment of a minimum wage from any Employer under the California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders published by the California Industrial Welfare Commission.
means any person or entity, as defined in Section 18 of the California Labor Code, who directly or indirectly employs or exercises control over the wages, hours or working conditions of any Employee.
means any individual employed by an Employer who works an average of at least thirty five (35) hours per week over the preceding nine (9) month period for the Employer, or any newly hired Employee who is regularly scheduled to work at least an average of thirty five (35) hours per week.
shall have the meaning set forth in section 22.4605 and shall constitute the minimum hourly rate paid to an Employee.Section 22.4604 Exemptions
The following Businesses, even if otherwise qualified as an Employer, are exempt from the requirements of this Division:
(a) Businesses employing twenty five (25) or fewer Full-Time Employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year. Each Business shall be viewed separately as it is organized and registered and there shall be no aggregation as defined under Internal Revenue Code section 414(b), (c), (m), or (o) in defining a Business as one Employer. Each registered Business is a separate entity for purposes of this Division and shall not be combined, nor considered an integrated enterprise, for purposes of the employee count contemplated by this Division.
(b) Businesses organized under Internal Revenue Code section 501(c)(3) to provide community-based social services. Section 22.4605 City of San Diego MinimumWage
(a) Employers subject to this Division must pay Employees no less than the minimum hourly wage rate posted as provided below for each hour worked within the geographic boundaries of the City.
(b) The City of San Diego Minimum Wage is established as follows:
COMMENCING MINIMUM WAGE
January 1, 2015 $10.10 per hour
January 1, 2016 $11.38 per hour
January 1, 2018 $12.00 per hour
(c) The City of San Diego Minimum Wage for Employees who receive performance-based compensation (including but not limited to gratuities, commissions, flat/flag rate, piece-rate, etc.) in addition to hourly wages shall be set at $10.10 per hour commencing on January 1, 2015. The City of San Diego Minimum Wage will not increase according to the schedule set forth above for Employees who receive performance-based compensation and who have an annual overall average rate of pay greater than $16.00 per hour, calculated by dividing the Employees total earnings reported to the State of California as taxable income in the prior calendar year (including hourly wages, gratuities, commissions, piece-rate payments, bonuses and/or other performancebased compensation) by the Employees total hours worked in that calendar year according to the Employers time records. This exemption shall be deemed applicable at the commencement of an Employees employment with an Employer. A calculation of the average rate of pay to determine the applicability of this exemption shall be done every three (3) months until the end of the first calendar year after the commencement of employment, or until the Employee completes nine (9) months of continuous employment with the Employer, whichever comes first; however, if the Employee commences employment after October 1 of the calendar year, the calculation shall be done after three (3) months of continuous employment. Thereafter, the applicability of this exemption shall be determined as set forth above.
(d) Any adjustments to the City of San Diego Minimum Wage, other than as set forth in this Division, must be approved by the voters.Section 22.4606 Reconciliation of Payrolls Records
At the conclusion of each pay period, Employers shall review and reconcile each paycheck paid to Employees. At no time shall Employers pay Employees less than the City of San Diego Minimum Wage for hours worked within the geographic boundaries of the City.Section 22.4607 Sick Leave
(a) Full-Time Employees who have worked continuously for an Employer for at least ninety (90) days are entitled to accrue up to forty (40) hours of Sick Leave per year as set forth herein. Sick Leave can be used for an illness of the Employee, an illness of the Employees child, parent, spouse, registered domestic partner or other persons including care for elderly or ill family members in accordance with local, state, or federal law. Sick Leave is not vacation time or personal time off. The Employer may require verification of illness from a physician.
(b) For Employees working for an Employer on or before the effective date of this Division, Sick Leave shall begin to accrue as of the effective date of this Division. For Employees hired by an Employer after the effective date of this Division, Sick Leave shall begin to accrue ninety (90) days after the commencement of employment with the Employer. Sick Leave does not vest, and may not be used until the Employee has worked continuously for at least ninety (90) days for the Employer after the effective date of this Division. Sick Leave shall accrue at the rate of 1 hour for every forty (40) hours actually worked, not including sick days, holidays, vacation or other leaves of absence, up to a maximum of forty (40) hours of Sick Leave in each 12-month period beginning with the Employees first day of employment.
(c) Once an Employee has accrued the maximum annual number of Sick Leave hours, the Employee will not become eligible to accrue additional Sick Leave in subsequent year(s) except to the extent that prior accrued Sick Leave has been used and the current balance of accrued, but unused, Sick Leave hours is below forty (40) hours.
(d) Nothing in this Division is intended to prevent an Employer from providing additional sick leave benefits to employees, nor is it intended to limit an Employees access to existing local, state or federal leave of absence protections or assistance.
(e) Employees who continue to receive compensation when not physically at work will be entitled to time off for Sick Leave, but will not be entitled to receive additional compensation for this Sick Leave time off; they simply continue to receive their regular compensation during their Sick Leave based on their compensation plan.
(f) Sick Leave does not count as "hours worked" for purposes of calculating an Employee's entitlement to overtime during the week in which the absence occurs.
(g) If an Employer has a paid leave policy, such as a paid time off policy, which makes available to Employees an amount of paid leave that may be used for the same purposes as Sick Leave under this Division and which is sufficient to meet the requirements for Sick Leave as stated in this subsection, the Employer is not required to provide additional Sick Leave.
(h) An Employer is not required to provide financial or other reimbursement to an Employee for Sick Leave which the Employee has not used upon the Employee's termination, resignation, retirement, or other separation from employment.Section 22.4608 Severability
All provisions in this Division are intended to be consistent with all applicable federal and state laws. If any part or provision of this Division, or the application of this Division to any person or circumstance, is held invalid or inoperative, in whole or in part, by any court, the remainder of this Division, including the application of such part or provisions to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. The courts are hereby authorized to reform the provisions of this Division in order to preserve the maximum permissible effect thereof. To this end, the provisions of this Division are severable.
II. Effective Date
This ordinance shall become effective on January 1, 2015, or on the earliest possible date after the City Clerk certifies the results of the election to the City Council, if such certification occurs after January 1, 2015. This ordinance is intended to have prospective effect only.
III. Resolution of Conflicting Provisions in Other Measures
In the event that this ordinance and another ordinance or ordinances relating to the minimum wage passes at the same election, but this ordinance receives a greater number of affirmative votes, it is the intent of the people of the City of San Diego that the provisions of this ordinance shall prevail in their entirety, and all provisions of the other ordinance or ordinances shall be null and void.
Notwithstanding any other provision in the law, in the event that this ordinance and another ordinance or ordinances relating to the minimum wage passes at the same election, but another ordinance or ordinances relating to the minimum wage receives a greater number of affirmative votes, it is the intent of the people of the City of San Diego that the provisions of this ordinance relating to performance-based compensation exemption shall nevertheless take effect, to the extent such provisions do not appear in such other passed ordinance or ordinances.IV. Defending the City of San Diego MinimumWage Ordinance
(a) In the event that the City declines to defend the ordinance or declines to appeal an adverse judgment against the ordinance, it is the intent of the people of the City of San Diego to grant formal authority to the proponent or its designee to defend this ordinance, either by intervening in or by defending the ordinance on behalf of the people and the City in a legal proceeding, because the proponent of this ordinance has a direct and personal stake in defending this ordinance.
(b) In the event that the proponent or its designee is defending this ordinance in a legal proceeding because the City has declined to defend it or to appeal an adverse judgment against it, the proponent or its designee shall:
(1) act as agents of the people who approved this ordinance and the City;
(2) be subject to all ethical, legal, and fiduciary duties applicable to such parties in such legal proceeding; and
(3) take and be subject to the Oath of Office prescribed by Article XIV, section 21of the San Diego Charter for the limited purpose of acting on behalf of the people and the City in such legal proceeding.
A statement of the reasons for the proposed action as contemplated in said petition is as follows:
Providing a Sustainable Minimum Wage in the City of San Diego
The People of the City of San Diego believe it is proper to set a minimum wage which requires private employers to pay their employees a wage that will enable a full-time employee to meet basic needs and avoid economic hardship. Paying employees a sustainable wage is intended to improve the quality of life for employees and to reduce high turnover, absenteeism, and instability in the workplace. This ordinance will promote the Citys policies and programs that seek to meet the employment and economic development needs of the City and its workforce.
This ordinance will allow employees who work within the geographic boundaries of the City to accrue five sick days from their employer per year, encouraging workers to look after their health and the health of family members. This ordinance also recognizes the need to exempt businesses with 25 or fewer full-time employees and social service nonprofit organizations, so that they can continue to remain viable and help the economy of the City. Any employee who receives significant performance-based compensation, as set forth in the ordinance, will be compensated at the Citys minimum base wage or State of California minimum wage, whichever is higher.
This ordinance will support a common vision of a more prosperous City, where employees and employers work together for a fair wage for employees while still allowing businesses to grow and the City to continue to be an attractive destination for future business.
_____________________ Date: April 3, 2014
PO Box 720332
San Diego, CA 92172
Pub Apr 4 -00119627