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Wash. City's Virus Hazard Pay Law Survives Grocers' Suit

By Max Kutner · April 21, 2021, 7:27 PM EDT

A temporary pay bump mandated by Burien, Washington, for grocery store workers amid the coronavirus pandemic is constitutional and not preempted by federal labor law, a Washington state federal judge ruled, throwing out a suit by two grocery industry groups.

In an order Tuesday, U.S. District Judge John C. Coughenour said the dismissal was warranted after tossing a "nearly identical" lawsuit by the same Washington Food Industry Association and Northwest Grocery Association groups over a hazard pay ordinance in Seattle. The judge had dismissed that case in March.

"Because the allegations in this case are materially similar to that case, the court sees no reason to depart from its prior rulings on these same arguments," Judge Coughenour said.

When dismissing the Seattle case, the judge had rejected the groups' arguments that the National Labor Relations Act preempted the Seattle law and the ordinance violated the equal protection and contracts clauses of the federal and state constitutions.

The same reasoning applied in the Burien case, the judge said.

As in the Seattle case, the Burien ordinance set a minimum wage standard but did not stop employees and employers from negotiating over other compensation issues, so the NLRA did not preempt the law, the judge said.

Also as in the Seattle case, the judge rejected the associations' argument that the Burien ordinance violated the equal protection clauses by singling out certain employers for restrictions and not others.

Under a rational basis review, the Burien law has "plausible reasons" for its classifications, the judge said. Those reasons are that grocery stores have made profits during the pandemic, grocery workers face heightened exposure to the coronavirus and those workers do a public good by providing food, according to the judge.

When it came to contracts clauses, the judge said, under a test for determining whether a law unconstitutionally interferes in a contract, Burien's ordinance survives because there is a "legitimate public purpose" for it and because the associations hadn't identified specific contractual terms the law impaired.

The judge also agreed to toss the Burien suit on the grounds that the groups had failed to respond to the motion to dismiss.

"The court takes plaintiffs' failure to respond to defendant's motion as an admission that the motion has merit," the judge said.

The associations had sued Burien in February to halt the ordinance. They said that it was unlawful because of the NLRA preemption and the equal protection and contracts clauses violations.

Burien's grocery workers hazard pay ordinance, which the city council passed in February, requires grocery stores with at least 250 employees worldwide to pay workers an extra $5 an hour until Washington ends its state of emergency.

The Burien suit was one of several recent challenges by grocery industry groups to hazard pay laws.

The associations appealed the Seattle dismissal, and other groups have sued to stop laws in places including Long Beach, California.

"The city of Burien is pleased that Judge Coughenour upheld its hazard pay ordinance that protects and supports Burien's essential and hardworking grocery store workers during a pandemic while the large grocers have earned record profits," Jessica Goldman, who represents Burien, said in a statement to Law360 on Wednesday.

Counsel for the associations did not immediately respond to a request for comment.

Spokespeople for the associations and the city did not immediately respond to a request 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.

The city is represented by Jessica L. Goldman of Summit Law Group.

The case is Northwest Grocers et al. v. City of Burien, case number 2:21-CV-00203, in U.S. District Court for the Western District of Washington.

--Editing by Neil Cohen.

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