Council Protects Workers in Living Wage War

By Jorge Casuso

Laying the groundwork for a stricter law, the City Council Tuesday night passed an emergency ordinance protecting workers who speak out on an unprecedented living wage proposal being studied by the council.

Council members stressed the importance of acting quickly as the living wage battle escalates, but they also were concerned that the ordinance they passed does not go far enough to deter retaliatory firings.

As a result, the council will revisit the issue at its first meeting in May, when staff returns with an ordinance that shifts the burden of proof to the employers and makes it explicit that, if found guilty, they must reinstate workers with back pay.

"I think it's better to take two or three weeks and do an ordinance well, rather than cobble something together here for a difficult subject," said Mayor Ken Genser.

"My concern is that this (retaliatory firings) might happen tomorrow or the next day," said Councilman Richard Bloom. "My concern is the reason we have an emergency ordinance here in the first place."

The emergency ordinance comes three weeks after the exclusive Jonathan Club on the beach terminated some two dozen employees, many of whom had publicly supported a living wage proposal that would require businesses along the coast with more than 50 employees to pay workers at least $10.69 an hour. Club management has said the move was strictly a business decision.

The motion to revisit the issue came after attorneys for Santa Monicans Allied for Responsible Tourism (SMART) - who helped craft the proposed living wage law --cautioned the council that the ordinance on the table did not go far enough to protect workers.

They noted that similar protections already exist under state and federal laws, which often require years of hearings before workers are compensated.

"The penalties are not sufficient," said Steven Ury, an attorney who is on SMART's legal team. "We would like to see an ordinance with greater teeth."

Ury said the proposed ordinance placed too much of the burden of proof on the employees.

"You have to prove motivation and knowledge," Ury said. "You have to get into the employer's head... prove their reasons for action. Try to create something that would have a deterrent effect."

Attorneys also were concerned that the proposed ordinance did not give dismissed workers what they want most - their jobs back with back pay.

"This is an admirable step, but this doesn't give process or remedy that doesn't already exist," said Erika Zucker, director of policy and advocacy for the LA Alliance for a New Economy, which sponsored a Los Angeles law protecting workers against retaliation.

"If you don't have an enforcement procedure, you're not passing anything that has any strength," Zucker said. "This doesn't create any real immediate remedy for employees. What employees want is their jobs back and some back pay."

Zucker said that only three retaliation complaints in three years have been filed under the Los Angeles law, evidence that it has had a deterring effect.

City Attorney Marsha Moutrie, however, cautioned that a similar local law could be expensive to enforce.

"Our resources are stretched to the limit right now, Moutrie said.

The City Attorney also noted that Santa Monica's charter caps its fines at $500 (a limit the council is contemplating increasing at the ballot box).

Moutrie also said that the ordinance the council approved Tuesday night already is "sufficiently broad to force employers" to reinstate workers and give them back pay.

Moutrie said her staff will craft an ordinance that shifts the burden of proof to the employers. But she suggested that civil remedies should be encouraged to cut down on the costs of enforcement.

"It is not uncommon to shift the burden," Moutrie said. "My strong suggestion would be to make civil remedies attractive."