A federal judge today denied a bid by the California Grocers Association to temporarily overturn a Long Beach ordinance mandating an additional $4 per hour “hero pay” for supermarket workers who face greater risk performing their jobs during the COVID-19 pandemic.
U.S. District Judge Otis D. Wright II concluded that in its argument for a preliminary injunction—a temporary stop to the law—the CGA failed to establish a likelihood of success on its claims.
“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief,'” Wright wrote, explaining the CGA’s arguments didn’t meet that high burden of proof.
The lawsuit, filed in Los Angeles federal court last month, asked the court to declare the hazard pay decree invalid and unconstitutional. That legal fight will still be allowed to proceed, just with the law remaining in place for now.
Long Beach was the first city to pass a hero pay ordinance for grocery workers, and the lawsuit has become a litmus test for whether mandates in similar cities will stand.
Because of that, Wright’s decision today took on added weight, and both sides submitted lengthy arguments trying to sway his decision on whether or not to block the law so early on in the court battle.
“The preliminary injunction issue has been fully, if not excessively, briefed,” the judge wrote in his ruling.
The CGA alleged that the ordinance, which was enacted Jan. 19, is illegal because, by singling out certain grocers and ignoring other groups that employ essential frontline workers, it violates the constitutional requirement that similarly situated people must be treated alike. The CGA also argued that 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,” Ron Fong, the CGA’s president and CEO, said when the suit was filed. “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.”
Fong said firefighters, police officers and 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.”
Long Beach City Council members have argued they have a moral obligation to support grocery workers.
“We’re living in unprecedented time and it’s a matter of urgency,” Councilwoman Mary Zendejas, who proposed the ordinance, said last month. “We need to do more than just celebrating them, we need to provide them a benefit.”
Other cities have followed suit.
The Los Angeles City Council on a 14-1 vote Wednesday, preliminarily approved an emergency ordinance to require large grocery and pharmacy retailers to offer employees an additional $5 per hour in hazard pay amid the COVID-19 pandemic. A final vote is scheduled on Wednesday.
The Los Angeles council vote came a day after the Los Angeles County Board of Supervisors adopted an urgency ordinance to require $5 additional pay for national grocery and drug retail employers in unincorporated areas of the county.
The CGA has also filed federal lawsuits against West Hollywood and Montebello, seeking to declare hazard pay mandated by those cities as invalid and unconstitutional, contending that grocers will not be able to absorb the additional pay without raising prices, closing stores, reducing hours or laying off employees.
Already, Kroger announced it would close two stores in Long Beach because of the hero pay mandate.
“We support the CGA’s move to appeal the decision by the lower court to the 9th U.S. Circuit Court of Appeals,” said Long Beach Area Chamber of Commerce President and CEO Jeremy Harris in a statement Friday. “A recent study prepared for CGA, determined that in the City of Long Beach the impact of its $4 per hour mandate would be the loss of 775 jobs. The study also concluded that if the increased costs were passed forward to consumers, a typical family of four in California would face increased food costs of $400 per year.”
Breaking News Editor Jeremiah Dobruck contributed to this report. Editor’s Note: This story has been update to include a statement from the Long Beach Area Chamber of Commerce.