In an expected move, yesterday attorneys representing local grocery chains filed for a preliminary injunction to block implementation or enforcement of the city’s $4 per hour hazard pay ordinance for front-line employees of large grocery employers in Seattle. The filing provides more detail into how the plaintiffs intend to argue their case.
In order to convince the court to issue a preliminary injunction, the plaintiffs must show:
- They are likely to win the case on the merits;
- they will suffer irreparable harm if not granted a preliminary injunction and forced to wait until final resolution of the case;
- the balance of harms between granting/not granting the injunction tips in their favor;
- an injunction is in the public interest.
Generally when the government is one of the parties, the third and fourth items are merged into a single test since the government is expected to represent the public interest.
See my earlier article on the case for a summary of the arguments the plaintiffs are making.
The motion filed yesterday fills in several blanks, including citations to case law that the plaintiffs believe support their legal argument as well as providing some evidence to back up their claims. While your faithful reporter was originally skeptical of the strength of their case, this latest filing adds some credibility to it.
On the merits:
- Their argument that the ordinance violates the National Labor Relations Act’s preemptions is based on the case Chamber of Commerce vs. Bragdon, which held that state and local government cannot pass laws that substantively affect the bargaining process. The plaintiffs provide affidavits from QFC and Safeway representatives attesting that both companies are in the midst of labor negotiations with UFCW 21, the union representing local front-line grocery employees, on topics including extra pay and/or benefits related to COVID. They argue that the ordinance essentially dictates the outcome of those negotiations, which is an impermissible invasion into the collective bargaining process that the NLRA expressly intended to prohibit through its preemption clause. For instance, mandating $4 per hour of hazard pay precludes arriving at a deal for a lower level of hazard pay in exchange for some mix of additional valuable benefits (e.g. enhanced healthcare or sick leave).
- Their argument that the ordinance violates the equal protection clauses of the federal and state constitutions is re-asserted, noting that it only affects a subclass of grocery employers — not all grocery stores, and not all “brick and mortar” retail outlets dealing with COVID-related issues.
- It ties the alleged equal-protection violation in with its claim that the ordinance violates the Contracts Clause of the federal and state constitutions. Governments may create classifications, but they are subject to different levels of scrutiny depending upon the laws and rights that they infringe. The plaintiffs argue that infringing a constitutional right such as the Contracts Clause’s right to be free of government impairment of contracts requires “strict scrutiny,” the highest standard that requires the government to show that the ordinance is “precisely tailored to serve a compelling government interest.” The plaintiffs argue that the ordinance fails strict scrutiny. Keep in mind that the question the pose is whether the classification of large grocery chains as the only ones subject to the ordinance serves a government interest, not whether $4 per hour hazard pay serves a government interest. The plaintiffs assert that there is no possible justification for that classification, certainly at the “strict scrutiny” level but even at the lowest level of whether there is a “rational basis” for it.
The plaintiffs’ claims of “irreparable harm” in the absence of an injunction is destined to be an uphill battle given that the argument is over money — which can be awarded as damages if the plaintiffs ultimately win the case. Nevertheless, they argue four types of irreparable harm:
- Reputational harm, stemming from the city branding the grocery stores as hazardous workplaces;
- The harm from having the city dictate their bargaining position in ongoing negotiations with the UFCW 21;
- A standard argument, backed up by case law, that infringement of a constitutionally-protected right assumes irreparable harm;
- Economic hardship, specifically that the Grocery Outlet stores will lose money if forced to pay an additional $4 per hour in hazard pay. The plaintiffs provide affidavits from the owners of the Madrona and Lake City Grocery Outlet stores, who claim that the ordinance will cost them $20,000 and $10,000 per month respectively, more than the monthly income of the stores. Thus the hazard pay ordinance may force the stores to close, they argue.
On the balance of harms and public interest tests, the plaintiffs argue that Washington law prevents employers from reclaiming wages already paid, meaning that if the stores were to continue paying the hazard pay but ultimately won the case, they would be forced to file individual claims against the city for monetary damages. On the flip side, the plaintiffs argue that granting an injunction has minimal impact on the general public.
Of course, it’s far from a sure thing that the plaintiffs will win. Courts have tended to give governments great latitude in passing legislation to address the COVID emergency, even when those laws infringe constitutional rights, and the court may do so here as well.
The case has been assigned to U.S. District Court Judge John Coughenour. He has wasted no time diving in, today scheduling a status conference for 10am next Wednesday “in light of the urgency of addressing this matter” — even before the city has had a chance to file a response to the motion for preliminary injunction. One reason it is so urgent is because the hazard pay ordinance was passed as emergency legislation and as such went into effect as soon as the Mayor signed it last week (instead of the usual 30-day wait), so the grocery chains are already paying hazard pay to their employees.
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