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Santa Clara County, CA November 6, 2012 Election
Measure D
Minimum Wages
City of San Jose

Majority Approval Required

Pass: 178123 / 59.65% Yes votes ...... 120491 / 40.35% No votes

See Also: Index of all Measures

Results as of Dec 17 1:46pm, 100.0% of Precincts Reporting (456/456)
Information shown below: Yes/No Meaning | Impartial Analysis | Arguments | Full Text

Shall an ordinance be adopted that (1) requires (a) payment of minimum wages in San Josť at $10 per hour with an annual increase, if any, based on the Consumer Price Index beginning January 1, 2014; (b) City enforcement through fines, penalties, civil actions, or revocation or suspension of permits or licenses; and (c) voter approval of substantive changes to the ordinance; and (2) allows private enforcement through civil actions?

Meaning of Voting Yes/No
A YES vote on this measure means:
A "yes" vote is a vote to require payment of a minimum wage of $10.00 per hour for work performed in San Jose under certain circumstances and to approve the implementation and enforcement of the requirement as described above.

A NO vote on this measure means:
A "no" vote is a vote to continue payment of the higher of the state and federal minimum wage which is currently $8.00 per hour.

Impartial Analysis from City Attorney
This initiative ordinance, if approved by a majority of the voters, would add a new chapter to the San Jose Municipal Code (the "Code") to require employers to pay their employees a minimum wage of $10.00 per hour for work performed within the City of San Jose. The minimum wage required by California state law is $8.00 per hour, and the federal minimum wage is $7.25 per hour. Employers are required to pay the highest of the local, state or federal minimum wage. The proposed ordinance would make the new minimum wage effective 90 days after certification of the results of this election and require the City to adjust it each year beginning January 1, 2014 based on increases in a specified Consumer Price Index.

The proposed ordinance would apply to most employers. It would not apply to employers that (1) do not maintain a facility in the City of San Jose and (2) are exempt from the Business License Tax under the Code. The minimum wage requirement would not apply to a person who works less than two hours per week. The proposed ordinance also seeks to apply to participants in welfare-to-work programs, administered by the County of Santa Clara, by limiting the number of hours the participants would be required to work to the number of hours equal to the cash benefits divided by the minimum wage.

The proposed ordinance includes a number of administrative requirements and enforcement provisions. Covered employers would be required to post current and prospective minimum wage rates at the place of employment, notify the employees of current and prospective minimum wage rates, and maintain certain payroll records. The proposed ordinance would prohibit retaliation or discrimination against any person seeking to enforce the rights provided by the ordinance. The City would be required to administer and enforce the provisions including, investigating possible violations, issuing administrative citations and compliance orders, and filing a lawsuit in court. Remedies available include award of back wages, civil penalties, equitable relief, and payment of reasonable attorneys' fees and costs. Any person harmed by a violation of the minimum wage requirement, or any member of the public, would have the right to sue in court to enforce the requirement.

A "yes" vote is a vote to require payment of a minimum wage of $10.00 per hour for work performed in San Jose under certain circumstances and to approve the implementation and enforcement of the requirement as described above.

A "no" vote is a vote to continue payment of the higher of the state and federal minimum wage which is currently $8.00 per hour.

The above statement is an impartial analysis of Measure D. If you would like to read the full text of the measure, see http://www.sanjoseca.gov/clerk/elections/Election.asp or call (408) 535-1260 and a copy will be sent at no cost to you.

s/ Richard Doyle
City Attorney
City of San Jose

  Nonpartisan Information

League of Women Voters

  • Pros & Cons of Measure D - Read background, a summary of what happens if the measure passes, and a summary of claims made by the supporters and opponents
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News and Analysis

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Arguments For Measure D Arguments Against Measure D
Do you believe $8 an hour is too little to live on in San Jose? If your answer is "yes," then vote "yes" on Measure D.

Measure D increases the minimum wage in San Jose from $8 to $10. That's all it does, but that single action is of real importance to tens of thousands of local families.

Measure D sets our minimum wage at a level that reflects our values and our sense of fairness. It means that those who work hard and play by the rules can earn a livable wage, pay their bills, and take care of their kids.

Measure D recognizes the difficulty of earning the state minimum in one of the highest cost cities in the country. San Jose rents average $1,800 a month. That's $400 more than the monthly pay of a minimum wage worker.

Fortunately, increasing the minimum wage is both the right thing to do and the smart thing to do. When low-wage workers receive a raise, they spend virtually every dollar close to home. That is likely to help small neighborhood businesses. Raising the minimum wage will generate an estimated $70 million dollars in demand for local goods and services. More local spending leads to more local hiring.

Outside political interests will probably contribute record amounts to defeat Measure D. Many of these groups lobbied against raising the state minimum wage when it was only $6 an hour. They falsely argue a higher minimum wage will lead to the loss of jobs although they know leading economists have repeatedly refuted this phony claim. These groups have relentlessly opposed any effort to raise the minimum wage. Their values are not our values.

$8.00 is too low for San Jose. Vote "yes" on Measure D.

s/ Michael M. Honda
Member of Congress

s/ Geovanno Belaski
Owner, Azucar Latin Bistro

s/ Judy Chirco
Small Business Owner

s/ Norman Kline
Small business Owner

s/ H. Robyn Levine
Owner, Details Clothing Co.

Rebuttal to Arguments For
Proponents of Measure D claims it only raises wages and creates jobs.

Both claims are simply false - and anyone who reads Measure D can see it.

Measure D does a lot more than raise wages: it creates a costly new city bureaucracy, it authorizes the City to audit every business in San Jose, and it allows more lawsuits. It also raises the minimum wage every year, with no cap.

Proponents claim that increasing wage costs will he1p businesses grow. Common sense tells you that such a claim is false. Independent surveys show that businesses owners are clear what they will have to do: cut jobs or hours, or raise prices to make up the difference.

In fact, Measure D will hurt those who need help the most - non-profit groups who provide job training and medical care. It will cripple cultural groups that rely on paid interns (who exchange training and opportunity for less pay). And it will mean fewer opportunities for young people or those trying to transition to a new career.

Big labor spent a lot of money to put Measure D on the ballot. Labor Council leader Cindy Chavez has brought in labor organizers to push for Measure D. This isn't about fixing our economy, balancing the budget or creating jobs - it's about Big Labor's national agenda hurting small businesses. And it will cripple San Jose's fragile recovery.

Say no to more city bureaucracy and frivolous lawsuits.
Say no to Cindy Chavez' wage hike.
Vote NO on D.

s/ Chuck Reed
Mayor of San Jose

s/ Annie Le
Owner, Lee's Sandwiches

s/ Jan Schneider
Owner, R&J Jewelry and Loan

s/ Geri Wong
President, San Jose Downtown Association

s/ Teresa Nguyen
Owner, Motif Restaurant

It's simple: Measure D means some people will get paid more, but a lot more people will lose their jobs or have their hours cut.

Measure D raises the government mandated minimum wage by 25 percent. And most small businesses say they will have to cut jobs or raise prices to stay open.

Measure D means you'll have to pay more for groceries, gas - even a hamburger.

And it will hurt those who need help the most. Goodwill Industries, which helps train people with disabilities, estimates that if this measure passes it will have to cut 100 job-training positions.

John Hogan from TeenForce - a non-profit group that helps find jobs and training for young people - says: "We do need to look at the minimum wage - but not like this, not this fast. It will make it harder for us to find jobs for kids who need them."

Measure D will add to city bureaucracy - costing city taxpayers more than $600,000 per year, every year. And that's just the start. And, every business in the city will face audits and will be forced to open their financial records for 4 years, costing even more.

Congress is already considering a bill to raise the minimum wage for every American - and without all the flaws of Measure D.

We all want residents to make more money, but Measure D is too much, too fast and too flawed. It hurts non-profits group's ability to help those who need help the most. It will mean fewer jobs in San Jose and make it harder to grow our economy. But it will grow city expenses and create a costly new City Hall bureaucracy.

s/ Chuck Reed
Mayor of San Jose

s/ Jeanne Katsuro
Owner, Classic Rock Jewelry, Japantown, San Jose

s/ James Duran
Co-Chair, California Hispanic Chamber of Commerce Public Policy Committee

s/ John Hogan
CEO TeenForce

s/Matt Mahood
President & CEO, San Jose Silicon Valley Chamber

Rebuttal to Arguments Against
Raising the minimum wage from $8 to $10 is the right thing to do. It's that simple.

The opponents of MeasureD are trying to mislead you. The truth is that there is widespread support among businesses and nonprofits for raising the wage. Here are the facts:

  • Numerous San Jose companies support Measure D, including Lunardi's Markets, Azucar Restaurant, Pacific Printing, and All Star Building Maintenance, to name a few.

  • United Way Silicon Valley and the Silicon Valley Council of Nonprofits, which represents the nonprofit sector in San Jose, both support Measure D. Most San Jose nonprofits already pay $10 an hour.

  • Measure D will level the playing field for local businesses by ensuring that large chain stores pay a fair wage.

The evidence from other cities that have raised the minimum wage proves that the opponents of Measure D are wrong about job losses and price increases.

Measure D will help our whole community by ensuring that people who work hard and play by the rules earn a fair wage.

Measure D will help thousands of working adults to become self-sufficient.

In San Jose, $8 an hour is not enough to keep people off government assistance. $8 an hour isn't fair to workers, it isn't fair to employers who pay decent wages, and it isn't fair to taxpayers who are forced to subsidize poverty wages.

Vote for fair wages. Vote "yes" on Measure D.

http://www.RaisetheWageSJ.com

s/ Dana Magat
Rabbi, Interfaith Council Chair

s/ Eduardo A. Samaniego
Priest, Most Holy Trinity Church

s/ John L. Freesemann
Pastor, Holy Redeemer Lutheran Church

s/ Paul Lunardi
President, Lunardi's Markets

s/ Lawrence E. Stone
Santa Clara County Assessor

Full Text of Measure D
AN INITIATIVE ORDINANCE OF THE CITY OF SAN JOSE AMENDING TITLE 4 OF THE SAN JOSE MUNICIPAL CODE TO REQUIRE THE PAYMENT OF A CITY-WIDE MINIMUM WAGE

WHEREAS families and workers need to earn a living wage and public policies which help achieve that goal are beneficial; and

WHEREAS payment of a minimum wage advances the interests of the City as a whole by creating jobs that keep workers and their families out of poverty; and

WHEREAS a minimum wage will enable a worker to meet basic needs and avoid economic hardship; and

WHEREAS this ordinance is intended to improve the quality of services provided in the City to the public by reducing high turnover absenteeism, and instability in the workplace; and

WHEREAS prompt and efficient enforcement of this Chapter will provide workers with economic security and the assurance that their rights will be respected.

NOW THEREFORE, BE IT ORDAINED, BY THE PEOPLE OF THE CITY OF SAN JOSE:

SECTION 1. Title 4 of the San Jose Municipal Code is hereby amended to add a new Chapter to be numbered entitled and to read as follows:

CHAPTER 4.100
Minimum Wage Ordinance

4.100. 010 TITLE.

This ordinance shall be known as the "Minimum Wage Ordinance."

4.100. 020 AUTHORITY.

This Chapter is adopted pursuant to the powers vested in the City of San Jose under the laws and Constitution of the State of California but not limited to, the police powers vested in the City pursuant to Article XI Section 7 of the California Constitution and Section 1205(b) of the California Labor Law.

4.100.030 DEFINITIONS.

The following terms shall have the following meanings:

A. "City" shall mean City of San Jose.

B. "Employee" shall mean any person who:

1. In a calendar week performs at least two (2) hours of work for an Employer as defined below.

2. Qualifies as an employee entitled to payment of a minimum wage from any employer under the California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders published by the California Industrial Welfare Commission, or is a participant in a Welfare-to-Work Program.

C. "Employer" shall mean any person, including corporate officers or executives, as defined in Section 18 of the California Labor Code, who directly or indirectly through any other person, including through the services of a temporary employment agency, staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee and who is either subject to the Business License Tax Chapter 4.76 of the Municipal Code or maintains a facility in the City.

D. "Minimum Wage" shall have the meaning set forth in Section 4.100.040 of this Chapter.

E. "Office" shall mean the Office of Equality Assurance or such other City department or office as the Council shall by resolution designate.

F. "Welfare-to-Work Program" shall mean the CalWORKS Program, County Adult Assistance Program (CAAP) which includes the Personal Assisted Employment Services (PAES) Program, and General Assistance Program, and any successor programs that are substantially similar to them.

4.100. 040 MINIMUM WAGE.

A. Employers shall pay Employees no less than the Minimum Wage set forth in this Section for each hour worked within the geographic boundaries of the City.

B. The Minimum Wage shall be an hourly rate of ten dollars ($10). To prevent inflation from eroding its value, beginning on January 1, 2014, and each year thereafter, the Minimum Wage shall increase by an amount corresponding to the prior year's increase, if any, in the cost of living. The prior year's increase in the cost of living shall be measured by the percentage increase, if any, as of August of the immediately preceding year over the level as of August of the previous year of the Consumer Price Index (Urban Wage Earners and Clerical Workers, U.S. City Average for All Items) or its successor index as published by the U.S. Department of Labor or its successor agency, with the amount of the minimum wage increase rounded to the nearest multiple of five cents. The adjusted minimum wage shall be announced by October 1 of each year, and shall become effective as the new minimum wage on January 1.

C. A violation for unlawfully failing to pay the Minimum Wage shall be deemed to continue from the date immediately following the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 ofthe California Labor Code, to the date immediately preceding the date the wages are paid in full.

4.100.050 WAIVER THROUGH COLLECTIVE BARGAINING.

To the extent required by federal law, all or any portion of the applicable requirements of this Chapter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms.

4.100.060 NOTICE, POSTING AND PAYROLL RECORDS.

A. By December 1 of each year, the Office shall publish and make available to Employers a bulletin announcing the adjusted Minimum Wage rate for the upcoming year, which shall take effect on January 1. In conjunction with this bulletin, the Office shall by December 1 of each year publish and make available to Employers, in all languages spoken by more than five percent of the work force in the City, a notice suitable for posting by Employers in the workplace informing Employees of the current Minimum Wage rate and of their rights under this Chapter.

B. Every Employer shall post in a conspicuous place at any workplace or job site where any Employee works the notice published each year by the Office informing Employees of the current Minimum Wage rate and of their rights under this Chapter. Every Employer shall post such notices in any language spoken by at least five percent of the Employees at the work-place or job site. Every Employer shall also provide each Employee at the time of hire with the Employer's name, address, and telephone number in writing.

C. Employers shall retain payroll records pertaining to Employees for a period of four years, and shall allow the City access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Chapter. Where an Employer does not maintain or retain adequate records documenting wages paid or does not allow the City reasonable access to such records, the Employee's account of how much he or she was paid shall be presumed to be accurate, absent clear and convincing evidence otherwise.

4.100.070 RETALIATION PROHIBITED.

It shall be unlawful for an Employer or any other party to discriminate in any manner or take adverse action against any person in retaliation for exercising rights protected under this Chapter. Rights protected under this Chapter include, but are not limited to: the right to file a complaint or inform any person about any party's alleged noncompliance with this Chapter; and the right to inform any person of his or her potential rights under this Chapter and to assist him or her in asserting such rights. Protections of this Chapter shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Chapter.

Taking adverse action against a person within ninety (90) days of the person's exercise of rights protected under this Chapter shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights.

4.100.080 IMPLEMENTATION

A. Guidelines. The Office shall be authorized to coordinate implementation and enforcement of this Chapter and may promulgate appropriate guidelines or rules for such purposes. Any guidelines or rules promulgated by the Office shall have the force and effect of law and may be relied on by Employers, Employees and other parties to determine their rights and responsibilities under this Chapter. Any guidelines or rules may establish procedures for ensuring fair, efficient and cost-effective implementation of this Chapter, including supplementary procedures for helping to inform Employees of their rights under this Chapter, for monitoring Employer compliance with this Chapter, and for providing administrative hearings to determine whether an Employer or other person has violated the requirements of this Chapter.

B. Reporting Violations. An Employee or any other person may report to the Office in writing any suspected violation of this Chapter. The Office shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the Employee or person reporting the violation. Provided, however, that with the authorization of such person, the Office may disclose his or her name and identifying information as necessary to enforce this Chapter or other employee protection laws. In order to further encourage reporting by Employees, if the Office notifies an Employer that the Office is investigating a complaint, the Office shall require the Employer to post or otherwise notify its Employees that the Office is conducting an investigation, using a form provided by the City.

C. Investigation. The Office shall be responsible for investigating any possible violations of this Chapter by an Employer or other person. The Office shall have the authority to inspect workplaces, interview persons and request the City Attorney to subpoena books, papers, records, or other items relevant to the enforcement of this Chapter.

D. Informal Resolution. The Office shall make every effort to resolve complaints informally, in a timely manner, and shall have a policy that the Office shall take no more than one year to resolve any matter, before initiating an enforcement action. The failure of the Office to meet these timelines within one year shall not be grounds for closure or dismissal of the complaint.

4.100.090 ENFORCEMENT

A. Where prompt compliance is not forthcoming, the Office shall take any appropriate enforcement action to secure compliance.

1. The Office may issues an Administrative Citation pursuant to Chapter 1.15 of the Code with a fine of not more than $50 for each day or portion thereof and for each Employee or person as to whom the violation occurred or continued.

2. Alternatively, the Office may initiate a proceeding under Chapter 1.14 of the Code by issuing a Compliance Order.

3. The City may initiate a civil action for injunctive relief and damages and civil penalties in a court of competent jurisdiction.

B. Any person aggrieved by a violation of this Chapter, any entity a member of which is aggrieved by a violation of this Chapter, or any other person or entity acting on behalf of the public as provided for under applicable state law, may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Chapter and, upon prevailing, shall be awarded reasonable attorneys' fees and costs and shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any back wages unlawfully withheld, the payment of an additional sum as a civil penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day that the violation occurred or continued, reinstatement in employment and/or injunctive relief. Provided, however, that any person or entity enforcing this Chapter on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief to employees, and reasonable attorneys' fees and costs.

C. This Section shall not be construed to limit an Employee's right to bring legal action for a violation of any other laws concerning wages, hours, or other standards or rights nor shall exhaustion of remedies under this Chapter be a prerequisite to the assertion of any right.

D. Except where prohibited by state or federal law, City agencies or departments may revoke or suspend any registration certificates, permits or licenses held or requested by the Employer until such time as the violation is remedied.

E. Relief

The remedies for violation of this Chapter include but are not limited to:

1. Reinstatement, the payment of back wages unlawfully withheld, and the payment of an additional sum as a civil penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this Code or state law.

2. Interest on all due and unpaid wages at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date the wages are paid in full.

3. Reimbursement of the City's administrative costs of enforcement and reasonable attorneys fees.

F. Posted Notice

If a repeated violation of this Chapter has been finally determined, the Office may require the Employer to post public notice of the Employer's failure to comply in a form determined by the City.

4.100.100 RELATIONSHIP TO OTHER REQUIREMENTS.

This Chapter provides for payment of a local Minimum Wage and shall not be construed to preempt or otherwise limit or affect the applicability of any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends other protections.

4.100.110 APPLICATION OF MINIMUM WAGE TO WELFARE-TO-WORK PROGRAMS.

The Minimum Wage established pursuant to Section 4(b) of this Chapter shall apply to the Welfare-to-Work programs under which persons must perform work in exchange for receipt of benefits. Participants in Welfare-to-Work Programs shall not, during a given benefits period, be required to work more than a number of hours equal to the value of all cash benefits received during that period, divided by the Minimum Wage.

4.100.120 FEES

Nothing herein shall preclude the City Council from imposing a cost recovery fee on all Employers to pay the cost of administering this Chapter.

4.100.130 AMENDMENT BY THE CITY COUNCIL.

This Chapter may be amended by the City Council without a vote of the people as regards the implementation or enforcement thereof, in order to achieve the purposes of this Chapter, but not with regard to lessening the substantive requirements of the Chapter or its scope of coverage.

SECTION 2. Effective Date.

This ordinance shall become effective on the ninetieth (90) day after it is certified. This ordinance is intended to have prospective effect only.

SECTION 3. Severability.

If any part or provision of this ordinance, or the application of this ordinance to any person or circumstance, is held invalid, the remainder of this ordinance, including the application of such part or provisions to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the provisions of this ordinance are severable.


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Created: December 17, 2012 13:46 PST
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