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Grocery Groups Fight Seattle's Bid To Nix Pandemic Pay Suit

By Max Kutner · 2021-03-09 16:13:05 -0500

A pair of grocery industry groups fired back at Seattle's request for a Washington state federal court to toss their lawsuit over the city's pandemic hazard pay ordinance, arguing that the law has "no legitimate connection" to protecting workers and the public.

The Northwest Grocery Association and the Washington Food Industry Association urged the court Monday not to grant Seattle's motion to dismiss, saying the city council ordinance singles out certain workers and not others, in violation of federal and state equal protection requirements.

"The council's decision to legislate in favor of this specific class of employers while excluding similarly situated retailers and other essential employees, who are at indisputably higher risk, cannot withstand any scrutiny," the associations said in their filing.

Seattle's Grocery Employee Hazard Pay Ordinance grants a $4 hourly wage hike to workers at grocery stores of a certain size. But the associations argued that the ordinance unlawfully interferes with certain employers and not others, in violation of the equal protection clauses of the federal and Washington state constitutions.

"The city did not impose such contractual impairments on an even-handed basis," the associations argued. "Instead, it singled out a specified subclass of employers of frontline workers — not even just grocers, but only those grocers who dedicate a sufficient area of its sales floor are to the sale of groceries, and which employ 500 or more grocery workers worldwide."

The associations further argued that the emergency status of the ordinance did not allow it to preempt federal laws because the law did not actually respond to an emergency.

"The ordinance regulates wages in an unprecedented manner, creating a city-mandated bonus program," the associations argued. "Because the city fails to justify this ordinance as an exercise of police power, the claim that the city's police power excuses this ordinance from federal preemption fails."

One federal law that preempts the ordinance is the National Labor Relations Act , because the hazard pay could interfere with bargaining, the associations argued.

"By its clear terms, the ordinance forecloses grocers and unions from collectively bargaining bonus structures, commission rates, overtime, paid leave or any other compensation term that could help to mitigate the immediate and drastic fiscal impact of the ordinance," the associations said in their filing.

The dispute stems from Seattle's approval of the ordinance in January. The associations sued on Feb. 3, the day the ordinance went into effect, claiming that the law violates the equal protection clauses and the NLRA.

In a Feb. 18 filing, Seattle urged the court to dismiss the suit, arguing that the associations were putting private agreements over public welfare and that the city had the authority to pass the ordinance.

Similar lawsuits over pandemic "hero pay" for grocery workers are happening elsewhere, including in Long Beach, California.

The same counsel behind the Long Beach challenge is also behind the Seattle one.

Dan Nolte, a Seattle city attorney's office spokesperson, defended the ordinance.

"The ordinance ensures that grocery store employees, working in critical jobs at the frontline of the ongoing public health crisis created by COVID-19, are justly compensated for the important work they perform and additional risk they face," Nolte said in a statement to Law360 on Tuesday. "More than 80 years of federal court decisions reject the plaintiff's position, and we believe the court in this case will reject their harmful invitation to limit the city's capacity to act to address public health and safety."

Counsel and spokespeople for the associations did not immediately respond to requests for comment.

Spokespeople for the Seattle mayor's office and city council also did not immediately respond to requests for comment.

The associations are represented by Tritia Murata and William Francis Tarantino of Morrison & Foerster LLP and Vanessa Soriano Power and Adam S. Belzberg of Stoel Rives LLP.

Seattle is represented in-house by Derrick Anthony De Vera, Erica R. Franklin and Jeremiah Miller.

The case is Northwest Grocery Association et al. v. City of Seattle, case number 2:21-cv-00142, in U.S. District Court for the Western District of Washington.

--Additional reporting by Daniela Porat and Mike LaSusa. Editing by Haylee Pearl.

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