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HomeMy WebLinkAboutdraft legislationDRAFT Title: AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 18 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, ENTITLED "FINANCE," AS AMENDED, BY AMENDING ARTICLE IV, ENTITLED "MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM," BY AMENDING SECTION 18-89 ENTITLED "CONTRACTS FOR PUBLIC WORKS OR IMPROVEMENTS" TO CREATE A LIVING WAGE ORDINANCE;"PROVIDING FOR A REPEALER PROVISION, A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. Body: WHEREAS, the City of Miami ("City") awards contract to private firms to provide services for the public and also provides financial assistance to promote economic development and job growth; and WHEREAS, such expenditures of public money also serve a public purpose by creating jobs, expanding the City's economic base, and promoting economic security for all citizens; and WHEREAS, such public expenditures should be spent only with deliberate purpose to promote the creation of full-time, permanent jobs that allow citizens to support themselves and their families with dignity; and WHEREAS, sub -poverty level wages do not serve the public purpose, and such wages place an undue burden on taxpayers and the community to subsidize employers paying inadequate wages by providing their employees with social services such as health care, housing, and nutrition; and WHEREAS, the City has a responsibility when spending public funds to set a community standard that permits full-time workers to live above the poverty line, and therefore, contractors and subcontractors of City service contracts must pay their employees nothing less than the living wage herein described; and WHEREAS, in addition to requiring living wages for City services provided by private firms, the City wishes to serve as an example by providing a living wage to all City employees; NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section. 1 The recitals and findings contained in the preamble to this Ordinance are adopted by reference and incorporated as if fully set forth in this Section. Section 2. Chapter 18/Article IV of the Code of the City of Miami, Florida, as amended, is amended in the following particulars:{1} "Chapter 18 FINANCE ARTICLE IV. MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM Sec. 18-89. Contracts for public works or improvements. LIVING WAGE REQUIREMENTS FOR SERVICE CONTRACTS AND CITY EMPLOYEES Definitions. City means the government of the city of Miami or any authorized agents, any board, agency, commission, department, or other entity thereof, or anv successor thereto. Covered emplovee means anyone employed by the city or any service contractor, as further defined in this division, either full or part time, as an employee with or without benefits or as an independent contractor. Covered employer means the city and anv and all service contractors, whether contracting directly or indirectly with the city, and subcontractors of a service contractor. Service contractor is any individual, business entity, corporation (whether for profit or not for profit), partnership, limited liability company, joint venture, or similar business who is conducting business in the city , or Miami -Dade County, and meets one of the two following criteria: (1) The service contractor is: a. Paid in whole or part from one or more of the city's general fund, capital project finds, special revenue funds, or anv other funds either directly or indirectly, whether by competitive bid process, informal bids, requests for proposals, some form of solicitation, negotiation, or agreement, or any other decision to enter into a contract; or b. Engaged in the business of, or part of, a contract to provide, a subcontract to provide, or similarly situated to provide, services, either directly or indirectly for the benefit of the city. However, this does not apply to contracts related primarily to the sale of products or goods. Covered services are the type of services purchased by the city that are subject to the requirements of this division which include the following: fli City service contracts. Contracts involving the city's expenditure of over $xx per year and which include the following types of services: a. Food preparation and/or distribution; b. Security services; c. Routine maintenance services such as custodial, cleaning, computers, refuse removal, repair, refinishing, and recycling; d. Clerical or other non -supervisory office work, whether temporary or permanent., e. Transportation and parking services., f. Printing and reproduction services; g. Landscaping, lawn, and or agricultural services; and h. Park and public place maintenance. (2) Should any services that are being performed by city employees at the time this division is enacted be solicited in the future by the city to be performed by a service contractor, such services shall be covered services subject to this division. Living wage. (a) Living wage paid. (1) Service contractors. All service contractors, as defined by this division, entering into a contract with the city shall pay to all its employees who provide services covered by this division, a livinq wage of no less than $xx an hour with health benefits, or a living wage of not less than $xx an hour without health benefits, as described in this section. (2) City employees. For city employees under the city pay plan, the city will begin to pay a living wage consistent with the goals and terms of this division on phase -in basis beginning in the 2003--2004 city budget year, increasing on an annual basis incrementally so that the living wage is fully implemented for city employees in the 2005- -2006 city budget year as may be adjusted pursuant to subsection (c) below. Thereafter, the livinq wage to be paid by the city to its employees shall not be subject to the annual indexing u sing the Consumer Price Index for all Urban Consumers (CPI-U) required under subsection (c) below and instead shall be subject to negotiations within the collective bargaining structure. (b) Health benefits: eligibility period. For a covered employer or the city to comply with the livinq wage provision by choosing to pay the lower wage scale available when a covered employer also provides health benefits, such health benefits shall consist of payment of at least $xx per hour toward the provision of health benefits for covered employees and their dependents. if the health benefits plan of the covered employer or the city requires an initial period of employment for a new employee to be eligible for health benefits (eligibility period) the Iiving_wage provision shall be complied with as follows during the eligibility period: (1) Provided the new employee will be paid health benefits upon the completion of the eligibility period, a covered employer or the city may only qualify to pay the $xx per hour wage scale for a term not to exceed the first 90 days of the new employee's eligibility period, said term commencing on the employee's date of hire. (2) if the covered employer's or the city's eligibility period exceeds the 90-day term provided in subsection (1), then the covered employer or the city, commencing on the ninety-first day of the new employee's eligibility period, must commence to pay a living wage of not less than $xx an hour. Proof of the provision of health benefits must be submitted to the awarding authority to qualify for the wage rate for employees with health benefits. (c) Indexing. The living wage will be automatically indexed each year using the Consumer Price Index for all Urban Consumers (CPI-U) unless the city commission determines it would not be fiscally sound to implement the CPI-U in a particular year. (d) Certification required before payment. Any and all contracts for covered services shall be void, and no funds may be released, unless prior to entering any agreement with the city for a covered services contract, the employer certifies to the city that it will pay each of its employees no less than the living wage described in xx A copy of this certificate must be made available to the public upon request. The certificate, at a minimum, must include the following: (1) The name, address, and phone number of the employer, a local contact person, and the specific project for which the covered services contract is sought; (2) The amount of the covered services contract and the city department the contract will serve; (3) A brief description of the project or service provided; (4) A statement of the wage levels for all employees; and (5) A commitment to pay all employees a living wage, as defined by xxx (e) Observation of other laws. Every covered employee shall be paid not less than biweekly, and without subsequent deduction or rebate on any account (except as such payroll deductions as are directed or permitted by law or by a collective bargaining agreement). The covered employer shall pay covered employees wage rates in accordance with federal and all other applicable laws such as overtime and similar wage laws. (f) Posting. A copy of the living wage rate shall be kept posted by the covered employer at the site of the work in a prominent place where it can easily be seen and read by the covered employees and shall be supplied to the employee within a reasonable time after a request to do so. Posting requirements will not be required where the covered employer prints the following statements on the front of the covered employee's first paycheck and every six months thereafter: "You are required by City of Miami law to be paid at least $x dollars an hour. If you are not paid this hourly rate, contact your employer, an attorney, or the City of Miami ." All notices will be printed in English, Spanish, and Creole. (q) Collective bargaining. Nothing in this division shall be read to require or authorize any covered employer to reduce wages set by a collective bargaining agreement or are required under any prevailing wage law. Implementation. (a) Procurement specifications. The living wage shall be required in the procurement specifications for all city service contracts for covered services on which bids or proposals shall be solicited on or after the effective date of this division. The procurement specifications for applicable covered services contracts shall include a requirement that service contractors and their subcontractors agree to produce all documents and records relating to payroll and compliance with this division upon request from the city. All covered service contracts awarded subsequent to the date when this division becomes effective, shall be subject to the requirements of this division. (b) Information distributed. All requests for bids or requests for proposals for covered services contracts of $xx or more shall include appropriate information about the requirements of this division. (c) Maintenance of payroll records. Each covered employer shall maintain payrolls for all covered employees and basic records relating thereto and shall preserve them for a period of three years or the term of the covered services contract, whichever is greater. The records shall contain: (1) The name and address of each covered employee; (2) The lob title and classification; (3) The number of hours worked each day; (4) The gross wages earned and deductions made; (5) Annual wages paid; (6) A copy of the social security returns and evidence of payment thereof; (7) A record of fringe benefit payments including contributions to approved plans; and (8) Any other data or information this division should require from time to time. (d) Reporting payroll. Every six months, the covered employer shall file with the procurement director a complete payroll showing the covered employer's payroll records for each covered employee working on the contract(s) for covered services for one payroll period. Upon request from the city, the covered employer shall produce for inspection and copying its payroll records for anYor all of its covered employees for any period covered by the covered service contract. The city may examine payroll records as needed to ensure compliance. Compliance and enforcement. (a) Service contractor to cooperate. The service contractor shall permit city employees, agents, or representatives to observe work being performed at, in or on the project or matter for which the service contractor has a contract. The city representatives may examine the books and records of the service contractor relating to the employment and payroll to determine if the service contractor is in compliance with the provisions of this division. (b) Complaint procedures and sanctions. (1) An employee who believes that this division applies or applied to him or her and that the service contractor, or the city, is or was not complying with the requirements of this division has a right to file a complaint with the procurement director of the city. Complaints by employees of alleged violations may be made at any time and shall be investigated within 30 days by the city. Written and oral statements by an employee shall be treated as confidential and shall not be disclosed without the written consent of the employee to the extent allowed by the Florida Statutes. (2) Any individual or entity may also file a complaint with the_procurement director of the city on behalf of an employee for investigation by the city. (c) Private right of action against service contractor. Any covered employee of or former covered employee of a service contractor may, instead of utilizing the city administrative procedure set forth in this division, but not in addition to such procedure, bring an action by filing suit against the covered employer in any court of competent jurisdiction to enforce the provisions of this division and may be awarded back pay, benefits, attorney's fees, and costs. The applicable statute of limitations for such a claim will be two years as provided in F.S. § 95.11 (4)(c) for an action for payment of wages. The court may also impose sanctions on the service contractor, including those persons or entities aiding or abetting the service contractor, to include wage restitution to the affected covered employee and damages payable to the covered employee in the sum of up to $xx for each week each service contractor is found to have violated this division. (d) Sanctions against service contractors. For violations of this division, the city shall sanction a service contractor by requiring the service contractor to pay wage restitution at the employers expense for each affected employee and may access the following: (1) The city may impose damages in the sum of $xx for each week for each employee found to have not been paid in accordance with this division; and/or (2) The city may suspend or terminate payment under the covered services contract or terminate the contract with the service contractor; and/or (3) The city may declare the employer ineligible for future service contracts for three years or until all penalties and restitution have been paid in full, whichever is longer. In addition, all employers shall be ineligible under this section where principal officers of the employer were principal officers of an employer who violated this division. (e) Public record of sanctions. All such sanctions recommended or imposed shall be a matter of public record. (f) Sanctions for aiding and abetting. The sanctions in xxx shall also apply to any party or parties aiding and abetting in any violation of this division. (q) Retaliation and discrimination barred. A covered employer shall not discharge, reduce the compensation, or otherwise discriminate against any covered employee for making a complaint to the city, or otherwise asserting his or her rights under this division1 participating in any of its proceedings or using any civil remedies to enforce his or her rights under this division. Allegations of retaliation or discrimination, if found true in a proceeding under paragraph (b) or by a court of competent iurisdiction under paragraph (c), shall result in an order of restitution and reinstatement of a discharged covered employee with back pay to the date of the violation or such other relief as deemed appropriate. (h) Enforcement powers. If necessary for the enforcement of this division, the city commission may issue subpoenas, compel the attendance and testimony of witnesses and production of books, papers, records, and documents relating to payroll records necessary for hearing, investigations, and proceedings. In case of disobedience of the subpoena, the city attorney may apply to a court of competent jurisdiction for an order requiring the attendance and testimony of witnesses and production of books, papers, records, and documents. Sa id court, in the case of the refusal to obey such subpoena, after notice to the person subpoenaed, and upon finding that the attendance or testimony of such witnesses of the production of such books, papers, records, and documents, as the case may be, is relevant or necessary for such hearings, investigations, or proceedings, may issue an order requiring the attendance or testimony of such witnesses or the production of such documents and any violation of the court's order may be punishable by the court as contempt thereof. (i) Remedies herein nonexclusive. No remedy set forth in this division is intended to be exclusive or a prerequisite for asserting a claim for relief to enforce the rights under this division in a court of law. This division shall not be construed to limit an employee's right to bring a common law cause of action for wrongful termination. " Section 3. All Ordinances or parts of Ordinances that are inconsistent or in conflict with the provisions of this Ordinance are repealed. Section 4. If any section, part of section, paragraph, clause, phrase or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected.