Laws and Legislation

Abstract:

Requires grocery employers to make prevailing health expenditures on behalf of its employees. The law specifically recognizes the industry is not doing so.

Author: New York City Council
Publication Date: 2005
Source: New York, NY
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Full Text:

LOCAL LAWS
OF
THE CITY OF NEW YORK
FOR THE YEAR 2005
No. 89
Introduced by Council Members Quinn, Jackson, Reyna, Rivera, Gioia, Gennaro,
Addabbo Jr., Palma, Weprin, Yassky, Baez, Brewer, James, Gerson, Perkins, Katz,
de Blasio, Martinez, Monserrate, Comrie, Sanders, Barron, Boyland, Clarke, Fidler,
Gentile, Gonzalez, Koppell, McMahon, Nelson, Recchia, Sears, Stewart, Vann,
Foster, Liu, Reed, Moskowitz, Lopez, Seabrook, The Speaker (Council Member
Miller), Avella and The Public Advocate (Gotbaum).
A LOCAL LAW
To amend the administrative code of the city of New York, in relation to requiring
employers in the grocery industry to make prevailing health care expenditures
on behalf of their employees.
Be it enacted by the Council as follows:
Section 1. Declaration of legislative findings and intent. In major industries in New
York City, such as the grocery industry, responsible employers have long provided
employer-paid health care for their employees and the families of their employees.
Ensuring that employers do not eliminate employer-paid health care is important for
minimizing the burden on taxpayers and the public health care system, protecting the
health, safety and well-being of hardworking New Yorkers and promoting safe
conditions and stable growth. Furthermore, research shows that ensuring access to
employer-paid health care can strengthen industries by reducing employee turnover and
improving employers’ ability to recruit new employees.
The City Council finds that in order to achieve these goals, employers should make
prevailing health care expenditures on behalf of their employees. This local law initially
establishes such a program in the grocery industry, where responsible employers have
demonstrated that it is economically feasible to pay for their employees’ health care, but
a growing number of employers in this industry are not doing so.
§2. Chapter 5 of title 22 of the administrative code of the city of New York is
hereby amended by adding a new section 22-506 to read as follows:
§22-506 a. Short title. This section shall be known and may be cited as the “Health
Care Security Act.”
b. Definitions. For purposes of this section, the following terms shall have the
following meanings:
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(1) “Administering agency” means any city agency, office, department, division,
bureau or institution of government, the expenses of which are paid in whole or in part
from the city treasury, as the mayor shall designate.
(2) “City” means the city of New York.
(3) “Covered employer” means any grocery employer operating in the city.
(4) “Covered industry” means the grocery industry operating in the city.
(5) “Employee” means any person who works at any location in the city on a fulltime,
part-time, temporary, casual, on-call, pool or seasonal basis for any grocery
employer, including, but not limited to persons who perform work for such employers as
independent contractors or as contingent or contracted workers, and persons made
available to work through the services of a temporary employment agency; provided,
however, that such term shall not include persons who are managerial, supervisory or
confidential employees.
(6) “Entity” or “Person” means any natural person, corporation, sole
proprietorship, partnership, association, joint venture, limited liability company or other
legal entity.
(7) “Family of employee” means the spouse or domestic partner as defined in
section 3-240 of the administrative code of an employee and each dependent child of
such employee.
(8) “Fiscal year” means the period from July 1 of each year through June 30 of the
following year.
(9) “Grocery employer” means any entity operating one or more retail stores in the
city that (i) primarily sell food for off-site consumption, where such entity employs thirtyfive
or more employees at any one such store, provided that such entity shall be deemed
to employ the highest number of employees that such entity employed at any time during
the preceding fiscal year or (ii) contain 10,000 square feet or more of floor space for the
sale of food for off-site consumption, such as a “big box” retail store or warehouse club;
provided that such term shall not include any retail store for which pharmacy sales
comprise fifty percent or more of store sales.
(10) “Health care expenditure” means any amount paid by a covered employer to
its employees or to another party on behalf of its employees and/or the families of its
employees for the purpose of providing health care services or reimbursing the cost of
such services for its employees and/or the families of its employees, including, but not
limited to, contributions by such employer to a health savings account as defined under
section 223 of the United States internal revenue code on behalf of any of its employees
and/or the families of its employees, or reimbursement by such employer to its employees
and/or the families of its employees for incurred health care expenses where such
recipients had no entitlement to have expenses reimbursed under any plan, fund or
program maintained by such employer; provided, however, that such term shall not
include any payment made directly or indirectly for workers’ compensation, Medicare
benefits or any other health care costs, taxes or assessments that such employer is
required to pay pursuant to any federal, state or local law other than this section, or any
amount deducted from an employee’s wages and not reimbursed by such employer.
(11) “Health care services” means primary or secondary medical care or services,
including, but not limited to, (i) inpatient and outpatient hospital services, (ii)
physicians’ surgical and medical services, (iii) laboratory, diagnostic and x-ray services,
(iv) prescription drug coverage, (v) annual physical examinations, (vi) preventative
services, (vii) mental health services or (viii) substance abuse treatment services;
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provided, however, that such term shall not include any medical procedure or treatment
which is solely cosmetic.
(12) “Prevailing health care expenditure rate” means the amount of health care
expenditure customarily made on behalf of a full-time employee and/or the family of such
employee in the same trade or occupation in the covered industry, prorated on an hourly
basis and calculated pursuant to paragraph 2 of subdivision c of this section.
(13) “Required health care expenditure” means the total health care expenditure
that a covered employer is required to make each year for its employees and/or the
families of its employees pursuant to subdivision c of this section.
(14) “Retaliatory action” means the discharge, suspension, demotion or
penalization of, or discrimination or taking other adverse action against, an employee
with respect to the terms and conditions of such employee’s employment.
c. Required health care expenditures. (1) Covered employers shall make required
health care expenditures on behalf of their employees and/or the families of their
employees each fiscal year.
(2) The administering agency shall annually determine the prevailing health care
expenditure rate for employees in the covered industry using procedures and standards
similar to those used to calculate prevailing wages and fringe benefits pursuant to
sections 230 and 220 of the New York state labor law; provided that where thirty percent
or more of such employees are covered by a valid collective bargaining agreement, the
prevailing health care expenditure rate for such employees shall be equal to the health
care expenditure rate for full-time employees as provided under such collective
bargaining agreement; provided further that where there are more than one such
collective bargaining agreements with differing health care expenditure rates for fulltime
employees which together cover thirty percent or more of the employees in the
covered industry, the prevailing health care expenditure rate for such employees shall be
the average such rate of all such agreements; and provided further that all employees
employed in the covered industry shall be deemed to be in the same trade or occupation
for purposes of determining the prevailing health care expenditure rate. Each prevailing
health care expenditure rate determined pursuant to this subdivision shall be published
by the administering agency by March 1 of each year and shall take effect on July 1 of
the fiscal year.
(3) Each covered employer shall annually determine its required health care
expenditure by multiplying the prevailing health care expenditure rate as determined by
the administering agency pursuant to this subdivision for such employer’s covered
industry by the total number of hours worked during the fiscal year by all the employees
of such employer.
(4) A covered employer shall (i) maintain an accurate work log that lists, for each
employee, such employee’s name, trade or occupation and the dates and hours worked
by such employee; (ii) provide an employee or such employee’s designated
representative(s) with access to such employee’s work log and payroll records for
inspection and copying; (iii) maintain accurate records of health care expenditures and
required health care expenditures, and proof of such expenditures each year, provided,
however, that covered employers shall not be required to maintain such records in any
particular form; and (iv) provide a report to the administering agency on an annual
basis containing the information required to be maintained pursuant to subparagraphs
(i) and (iii) of this paragraph, and such other information as the administering agency
shall require. Such report shall be made available to the public upon request without
employee names or other personally identifying information. A covered employer that is
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a signatory to one or more collective bargaining agreements that cover at least seventyfive
percent of its employees may comply with this section as provided in subdivision g.
d. Unlawful retaliation. It shall be unlawful for any covered employer to deprive or
threaten to deprive any person of employment, take or threaten to take any retaliatory
action against any person, or directly or indirectly intimidate, threaten, coerce,
command or influence or attempt to intimidate, threaten, coerce, command or influence
any person because such person has taken an action to enforce, inquire about or inform
others about the requirements of this section. Taking any such adverse action against
any person within ninety days of such person’s exercise of rights pursuant to this section
shall raise a rebuttable presumption that such action was in retaliation for the exercise
of such rights.
e. Violations and penalties. (1) Any covered employer found to be in violation of
this section by failing to make health care expenditures during the fiscal year at least
equal to the required health care expenditure for such employer shall be liable for a civil
penalty equal to the amount of the shortfall.
(2) Any covered employer found to be in violation of this section by failing to make
health care expenditures during the fiscal year at least equal to the required health care
expenditure for such employer shall correct such violation within ninety days of such
determination. The administering agency shall serve a notice to correct such violation
which shall specify the date which is ninety days from such determination by which the
violation shall be corrected. Failure to correct such violation pursuant to this paragraph
shall subject a covered employer to a civil penalty of not less than five hundred dollars
for each day such violation continues.
(3) Any covered employer found to have violated any of the requirements of
paragraph (4) of subdivision c of this section shall be liable for a civil penalty of not less
than five hundred dollars for each such violation.
(4) In addition to being liable for civil penalties pursuant to this subdivision, any
covered employer found to have violated this section may be subject to other action taken
by the administering agency, including, but not limited to, requesting that city agencies
or departments revoke or suspend any city-issued registration certificates, permits or
licenses held by such covered employer until such time as the violation is remedied.
(5) Penalties imposed pursuant to this section shall not affect any right or remedy
available or civil or criminal penalty applicable under law to any individual or entity, or
in any way diminish or reduce the remedy or damages recoverable in any action in
equity or law before a court of law with competent jurisdiction.
f. Enforcement. (1) The administering agency shall take appropriate action to
enforce this section, including, but not limited to, periodically auditing covered
employers to monitor compliance with this section; establishing a system to receive
complaints from any person charging that a violation has occurred pursuant to this
section; investigating complaints received; and making findings of violations and civil
penalties in accordance with the provisions of this section.
(2) Any proceeding to recover any civil penalty authorized pursuant to this chapter
shall be commenced by the service of a notice of violation which shall be returnable to
the administering agency. The commissioner or other designated person of such
administering agency shall, after due notice and an opportunity for a hearing, be
authorized to impose the civil penalties prescribed by this section.
(3) Any action or proceeding that may be appropriate or necessary for the
correction of any violation issued pursuant to this section, including, but not limited to,
actions to secure permanent injunctions, enjoining any acts or practices which constitute
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such violation, mandating compliance with the provisions of this section or such other
relief as may be appropriate, may be initiated in any court of competent jurisdiction by
the corporation counsel or such other persons designated by the corporation counsel on
behalf of the administering agency.
(4) Any joint-labor management committee established pursuant to the federal
Labor Management Cooperation Act of 1978 (section 175a of title 29 of the United
States code) operating in the covered industry may bring an action in any court of
competent jurisdiction against a covered employer that fails to make health care
expenditures during the fiscal year at least equal to the required health care expenditure
for such employer in violation of this section. Upon a determination of any such
violation, the court may award any appropriate remedy at law or equity and shall award
reasonable attorney’s fees and costs incurred in maintaining the action to any
complaining party who prevails in any such enforcement action.
(5) Any aggrieved person may bring an action in any court of competent jurisdiction
against a covered employer for violation of subdivision d of this section. Upon a
determination of any such violation, the court may award any appropriate remedy at law
or equity and shall award reasonable attorney’s fees and costs incurred in maintaining
the action to any complaining party who prevails in any such enforcement action.
(6) Any enforcement proceedings commenced under this section must be
commenced within three years after the date of the occurrence or termination of the
alleged violation, which ever occurs later.
g. Exemption. A covered employer that is a signatory to one or more collective
bargaining agreements that cover at least seventy-five percent of its employees may fully
comply with the requirements of this section by filing annually with the administering
agency proof of such collective bargaining agreements and their terms, in such form and
manner as specified by the administering agency, and shall otherwise be exempt from all
other provisions of this section.
h. Rules. The administering agency shall promulgate rules in accordance with this
section and such other rules as may be necessary for the purpose of implementing,
construing and carrying out the provisions of this section.
§ 3. If any section, subsection, sentence, clause, phrase, or other portion of this local
law, including any requirement imposed pursuant to it, is for any reason declared
unconstitutional or invalid, in whole or in part, by any court of competent jurisdiction,
such portion shall be deemed severable, and such unconstitutionality or invalidity shall
not affect the validity of the remaining portions of this local law, which remaining
portions shall continue in full force and effect.
§ 4. This local law shall take effect ninety days after its enactment into law.
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THE CITY OF NEW YORK, OFFICE OF THE CITY CLERK, s.s.:
I hereby certify that the foregoing is a true copy of a local law of the City of New
York, passed by the Council on August 17, 2005, disapproved by the Mayor on
September 16, 2005 and repassed by the Council Members on October 11, 2005 and said
law is adopted notwithstanding the objection of the Mayor.
VICTOR L. ROBLES, City Clerk of the Council
CERTIFICATION PURSUANT TO MUNICIPAL HOME RULE LAW §27
Pursuant to the provisions of Municipal Home Rule Law §27, I hereby certify that
the enclosed Local Law (Local Law 89 of 2005, Council Int. No. 468-A) contains the
correct text and:
Received the following vote at the meeting of the New York City Council on August
17, 2005: 46 for, 1 against, 0 not voting.
Was disapproved by the Mayor on September 16, 2005
Was returned to the City Clerk on September 16, 2005
Was reconsidered by the Council on October 11, 2005 and received the following
vote of the Council members at a meeting of the Council on October 11, 2005: 40 for, 2
against, 2 not voting.
This certification is not intended as to the validity of the local law, other than
certifying the truth of the facts presented herein.
JEFFREY D. FRIEDLANDER, Acting Corporation Counsel

URL: http://modelpolicies.thepraxisproject.org/files/model_policies/p39.pdf

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