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Affordable Housing
Living Wage Ordinance
passed by the
[For
LIVING WAGE ORDINANCE
28–1 LIVING WAGE.
28-1.1 Short Title. This section
may be cited as the “Living Wage Ordinance”.
28-1.2 Legislative
Findings. The
governing body of the city has determined that:
A.
The public welfare,
health, safety and prosperity of Santa Fe require wages and benefits sufficient
to ensure a decent and healthy life for workers and their families;
B.
Many
Santa Fe workers earn wages insufficient to support themselves and their
families;
C.
Many
Santa Fe workers cannot participate in civic life or pursue educational,
cultural, and recreational opportunities because they must work such long hours
to meet their households' most basic needs;
D.
Minimum
wage laws promote the general welfare, health, safety and prosperity of Santa
Fe by ensuring that workers can better support and care for their families
through their own efforts and without financial governmental assistance;
E.
The
average earnings per job in Santa Fe County is 23% below the national average
and the cost of living is 18% higher than the national average;
F.
Housing
costs in Santa Fe are much higher than in most other parts of New Mexico, and
low income workers must therefore spend a disproportionate percentage of their
income sheltering themselves and their families;
G.
Livable
wages also benefit employers and the economy as a whole by improving employee
performance, reducing employee turnover, lowering absenteeism, and thereby
improving productivity and the quality of the services provided by employees;
H. When businesses do not pay a livable
wage, the community bears the cost in the form of increased demand for
taxpayer-funded social services including homeless shelters, soup kitchens and
healthcare for the uninsured. Coupled with high real estate values,
low wages reduce the ability of low- and moderate-income residents to access
affordable housing. As a result, the
city has had to invest significant tax dollars to support affordable housing
including funding to non-profit organizations, purchasing land, building
infrastructure and waiving fees. In addition, the city has allocated
significant tax dollars to operate after school and summer recreation programs
and to support non-profit organizations offering an array of human services and
children and youth services, all of which are needed by very low-income
residents and their families;
I. It is in the public interest to
require employers benefiting from city actions and funding, and from the
opportunity to do business in the city, to pay employees a minimum wage, a
“living wage”, adequate to meet the basic needs of living in Santa Fe;
J. According to the 2000 Census,
approximately 12.3% of the Santa Fe community lives below the poverty level;
and
K. According to the New Mexico department
of labor, 23.5% of Santa Feans who are employed in the non-governmental sector
earn hourly wages of $10.50 per hour or less.
28-1.3 Authority of the City of
Santa Fe.
This
Living Wage Ordinance is adopted pursuant to the general welfare and police
powers conferred upon the city of Santa Fe by §3-17-1 et seq. and §3-18-1 et
seq. NMSA 1978, pursuant to the powers conferred upon the city of Santa Fe by
New Mexico Constitution, Article X §§6(D) and 6(E) and the Municipal Charter
Act, §3-15-1 et seq. NMSA 1978, which have been exercised by the city's
adoption of its "Santa Fe Municipal Charter".
28-1.4 Purpose. The
purposes of this ordinance are:
A. To
have the city of Santa Fe set an example for the public and private sectors by
paying its employees a minimum wage adequate to meet the basic needs of living
in Santa Fe.
B. To
raise the income of low-income employees of employers who contract with the
city, receive grants, subsidies or other benefits from the city or benefit from
the opportunity to do business in Santa Fe.
28-1.5 Minimum
Wage Payment Requirements.
A. The
following shall pay the minimum wage:
(1) The city of Santa Fe shall pay the
minimum wage to all full-time permanent workers employed by the city. However,
the provisions of this ordinance are expressly limited by and subject to future
union negotiations in compliance with the Fair Labor Standards Act and
subsequent appropriations by the governing body in compliance with the Bateman
Act;
(2) Contractors for the city, who employ more
than twenty-five (25) workers that have a contract requiring the performance of
a service including construction services but excluding purchases of goods,
shall pay the minimum wage to their workers and subcontractors performing work
under the contract if the total contract amount with the city is, or by way of
amendment becomes, equal to or greater than $30,000. This provision shall not
apply to leases of city real property or to contractors who are non-profit
organizations;
(3) Businesses receiving assistance relating
to economic development in the form of grants, subsidies, loan guarantees or
industrial revenue bonds in excess of $25,000 shall pay the minimum wage to
those employed by such entity for the duration of the city grant or subsidy;
and
(4) Businesses required to have a business
license or business registration from the city of Santa Fe who, during any
given month, have twenty-five (25) or more workers, or in the case of
not-for-profit organizations, who have twenty-five (25) or more workers, shall
pay the minimum wage to their workers for all hours worked within the city of
Santa Fe that month. For purposes of this paragraph, worker shall not include
any person who is related by blood or by marriage to any person who may have or
possess any ownership interest in the business that employs them. For purposes
of calculating the number of workers under this ordinance and identifying
persons entitled to be paid the minimum wage, all individuals employed by or
providing work to the business for compensation, whether on a part-time,
full-time or temporary basis, during a given month shall be counted as a
worker. This definition shall include contingent or contracted workers, and
persons made available to work through the services of a temporary services,
staffing or employment agency or similar entity. However, interns working for a
business for academic credit in connection with a course of study at an
accredited school, college or university or persons working for an accredited
school, college or university while also attending that school, college or
university, or persons working for a business in connection with a
court-ordered community service program such as teen court or workers who are
in an apprenticeship program in a 501C(3) organization (such as the Santa Fe
Opera) shall not be counted as a worker for such purposes.
B. Beginning January 1, 2004, the minimum
wage shall be an hourly rate of $8.50. In computing the wage paid for purposes
of determining compliance with the minimum wage, the value of health benefits
and childcare shall be considered as an element of wages. On January 1, 2006,
the minimum wage shall be increased to an hourly rate of $9.50. On January 1,
2008, the minimum wage shall be increased to an hourly rate of $10.50. Beginning
January 1, 2009, and each year thereafter, the minimum wage shall be adjusted
upward by an amount corresponding to the previous year’s increase, if any, in
the consumer price index for the western region for urban wage earners and
clerical workers.
For workers who customarily receive more than $100 per month in tips or
commissions, any tips or commissions received and retained by a worker shall be
counted as wages and credited towards satisfaction of the minimum wage provided
that, for tipped workers, all tips received by such workers are retained by the
workers, except that the pooling of tips among workers shall be permitted.
C. Non-profit organizations whose primary source of funds is
from Medicaid waivers are exempt.
28-1.6 Prohibitions Against Retaliation
and Circumvention.
A.
It shall be
unlawful for any business, employer or employer’s agent or representative to
take any action against an individual in retaliation for the exercise of or
communication of information regarding rights under this ordinance. This
section shall also apply to any individual that mistakenly, but in good faith,
alleges noncompliance with this ordinance.
B.
Taking adverse
action against an individual within sixty days of the individual’s assertion of
or communication of information regarding rights shall raise a rebuttable
presumption of having done so in retaliation for the assertion of rights.
C.
It shall be
unlawful for any business or employer to intentionally circumvent the
requirements of this ordinance by contracting portions of its operation or
leasing portions of its property.
28-1.7 Compliance Through Collective
Bargaining Process. Compliance with any or all of the provisions of this
ordinance, or any part thereof, may be obtained by recognizing an exclusive
representative for employees and executing a bona fide collective bargaining
agreement by and between an employer and its employees. [This entire Section 28-1.7 was repealed by the Santa Fe City Council
on September 8, 2004 by Ordinance 2004-38.]
28-1.8 Enforcement; Remedies.
A. Administrative
Enforcement. The city manager, or his/her designee, is authorized, as
appropriate and as resources permit, to enforce this ordinance. The city
manager is authorized to investigate possible violations of this ordinance.
Where the city manager, after a proceeding that affords a suspected violator
due process, concludes that a violation has occurred, the city manager may
issue orders to the employer appropriate to effectuate the complaining person’s
rights, including but not limited to back pay and reinstatement. The city
manager also has the power to order termination of any and all economic benefit
derived by any offending party from the city and has the power to revoke the
employer’s business license or registration.
B. Criminal
Penalty. A person violating this ordinance shall be guilty of a misdemeanor
and, upon conviction, for each offense may be subject to fines and imprisonment
as set forth in Section 1-3 SFCC 1987. A person violating any of the
requirements of this ordinance shall be guilty of a separate offense for each
day or portion thereof and for each worker or person as to which any such
violation occurred.
C. Other Remedies. The
city, any individual aggrieved by a violation of this ordinance, or any entity
the members of which have been aggrieved by a violation of this ordinance, may
bring a civil action in a court of competent jurisdiction to restrain, correct,
abate or remedy any violation of this ordinance and, upon prevailing, shall be
entitled to such legal or equitable relief as may be appropriate to remedy the
violation including, without limitation, reinstatement, the payment of any
wages due and an additional amount as liquidated damages equal to twice the
amount of any wages due, injunctive relief, and reasonable attorney’s fees and
costs.
D. Nonexclusive
Remedies and Penalties. The remedies provided in this section are not
exclusive, and nothing in this ordinance shall preclude any person from seeking
any other remedies, penalties, or relief provided by law.
28-1.9 Effect. Nothing in this Living
Wage Ordinance shall be deemed to nor shall be applied in such a manner so as
to have a constitutionally prohibited effect as an expost facto law or
impairment of an existing contract within the meaning of New Mexico Constitution,
Article II, §19.
28-1.10 Severability.
The
requirements and provisions of this ordinance and their parts, subparts and
clauses are severable. In the event that
any requirement, provision, part, subpart or clause of this ordinance, or the application
thereof to any person or circumstance, is held by a court of competent
jurisdiction to be invalid or unenforceable, it is the intent of the governing
body that the remainder of the ordinance be enforced to the maximum extent
possible consistent with the governing body’s purpose of ensuring a living wage
for persons covered by the ordinance.
28-1.11 Notice; Posting; and
Publication.
Any business subject to the provisions of this ordinance
shall as a condition to obtaining and holding a city of Santa Fe business
license or registration, post and display in a prominent location next to its
business license or registration on the business premises a notice, in English
and Spanish, that the business is in compliance with the provisions of this
ordinance and in particular post the text of Sections 28-1.5, 28-1.6 and 28-1.8
SFCC 1987. Failure to comply with this section shall be construed a violation
of this ordinance and, in addition, shall be considered grounds for suspension,
revocation, or termination of the business license or registration.
28-1.12 Living Wage Review.
The
city will conduct a review of this ordinance on or before July 1, 2005. In
conducting said review the governing body may, at its discretion and pursuant
to a duly-adopted resolution, appoint an ad hoc committee to advise and assist
in making recommendations regarding this ordinance and to investigate the
economic and social effects of this ordinance on Santa Fe. The
city will contract with an independent third party to develop an evaluation
that will generate objective measures on the effect of the Living Wage
Ordinance on the health, security, and livelihood of Santa Feans by March 31,
2003. Data necessary for such an evaluation on Santa Fe city businesses will be
compiled and presented to the governing body for their review on or before July
1, 2003. In compiling the data, consideration should be given to potential
impacts on youth employment and possible recommendations that might prevent
unforeseen consequences hurting children in the community.