HomeMy WebLinkAboutAgenda -02-23-1998 - C1 1 003
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
MEETING DATE: February 23, 1998
Action Agenda
SUBJECT: Living Wage Ordinance Item#C1
DEPARTMENT: PUBLIC HEARING: Yes_X_No
Purchasing& Central Services BUDGET AMENDMENT NEEDED: Yes—No
Economic Development Commission
ATTACIEWENT(S): INFORMATION CONTACT:
Draft Living Wage Ordinance Greg Payne(ext. 2327)
Pam Jones(ext. 2652)
Albert Kittrell(ext. 2300)
TELEPHONE NUMBERS:
Hillsborough - 732-8181
Durham - 699-7331
Mebane - (910)227-2031
Chapel Frill - 967-9251/968-4501
Purpose:
To receive public comment regarding a draft Living Wage Ordinance for Orange County, which
establishes a minimum wage level for certain firms doing business with County government.
Background:
In May, 1997, the BOCC received a report detailing the history of living wage ordinances across
the country. In the Fall of 1997, the BOCC defined which issues and situations should be covered
in a Living Wage Ordinance for Orange County and directed the County Attorney to draft an
ordinance.
The attached draft Living Wage Ordinance establishes a minimum wage of$8 per hour for
employees of service and construction firms contracting to do business with the County; and for
employees of fi=receiving loans or grants through the Orange County Small Business Loan
Pool or any economic development program.
Recommendation:
Receive public comment on the draft Ordinance.
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[Aw OMCES
COLEMAN, GLEDHILL & HARGRAVE
A PROFESSIONAL CORPORATION
129ETRYONSTRW February 9, 1998
P.O.DRAWFR 1529
HIIL580WXNMH.NCM CAROLINA 21278
919-732.2196 FROM THE DESK OF
FAX 919-732.7997 GEOFFREY E.GLFDHML
Mr. Ted Abernathy
Director
Orange County Economic
Development Commission
Post Office Box 1177
Hillsborough, North Carolina 27278
RS: Orange County Living Wage Ordinance
Dear Ted:
Enclosed is a draft Living Wage -ordinance for consideration
by the Orange County Board of Commissioners following the public
hearing to be held on February 23, 19')8 . There are a couple of
things about this ordinance that are worth mentioning at this
time.
1. The December 1, 1997 Board of Commissioners meeting
agenda materials included a staff recommendation to include
construction contracts in the Living wage Ordinance. For that
reason, I have included them in this ordinance. However, any
construction contract subject to federal or State bidding
requirements and particularly the lowest responsible bid
requirement of North Carolina law are going to, in my opinion,
escape coverage under this ordinance. This is so because the
State law has •preempted' the field with respect to contracts
covered by the public bidding laws . Any local requirement which
requires the County to award a construction contract to someone
who is not the lowest responsible bidder will not survive a legal
challenge.
2 . I have borrowed generously frcm the remedies provision
of the Liveable Wage Ordinance recently adopted by the City of
Durham. With respect to administration and remedies, it is the
most comprehensive of the ordinances that I reviewed. It also
demonstrates the degree of County administration that will be
necessary tct_enforce a living wage ordinance.
3 . 1 have not addressed Orange County employees in this
ordinance. Maintaining the lowest Orange County employee wage
rate to correspond with the Orange County Living Wage is an
administrative matter. The lowest Orange County wage rate is a
matter for the County's Personnel Ordinance and the Pay
Classification Plan.
0063
Mr. Ted Abernathy
Page 2
February 9, 1998
4 . 1 have not included an automatic living wage escalator,
but have rather provided for periodic review and change in the
Living Wage by ordinance amendment following a public hearing.
Althbugh it is attractive to include automatic escalators because
of their ease of administration, there are other considerations
that suggest a different approach. One of those is the
"education• benefit that flows from the public hearing process .
Another is ensuring that any escalator makes sense in Orange
County's economic environment. A third is ensuring that any
living wage change is incorporated into Orange County's Pay
Classification Plan.
5 . 1 have put this ordinance in "Code* format because
Orange County will likely have an ordinance code by July 1, 1998 .
I am available to answer any questions you may have.
Very truly yours,
Co GLEDHILL & HARGRAVE, P.C.
y
bGLEDI
ledhill
GEG/lsg
Enclosure
Xc: Margaret Brown
Moses Carey, Jr.
Bill Crowther
Alice Gordon
Stephen Halkiotis
Pam Jones
John M. Link, Jr.
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abernat2.ltr
0063
Mr. Ted Abernathy
Page 2
February 9, - 1998
4. 1 have not included an automatic living wage escalator,
but have rather provided for periodic review and change in the
Living Wage by ordinance amendment following a public hearing.
Althbugh it is attractive to include automatic escalators because
of their ease of administration, there are other considerations
that suggest a different approach. One of those is the
oeducation• benefit that flows from the public hearing process .
Another is ensuring that any escalator makes sense in Orange
County' s economic environment. A third is ensuring that any
living wage change is incorporated into Orange County's Pay
Classification Plan.
5 . 1 have put this ordinance in *Code* format because
Orange County will likely have an ordinance code by July 1, 1998.
I am available to answer any questions you may have.
Very truly yours,
GLEDH
CO Co ILL a HARGRAVE, P.C.
3 bGLIDI
y ledhill
GEG/lsg
Enclosure
xc: Margaret Brown
Moses Carey, Jr.
Bill Crowther
Alice Gordon
Stephen Halkiotis
Pam Jones
John M. Link, Jr.
lsg-11
abernat2.1tr
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AN ORDINANCE CONCERNING THE PAYMENT
OF A LIVING WAGE IN ORANGE COUNTY
WHEREAS, the federal minimum wage, as late as 1970, provided
a worker with annual earnings exceeding the federally defined
poverty level for a family of three; and
WHEREAS, the federal minimum wage has failed to keep up with
inflation and no longer provides a worker annual earnings
exceeding the federally defined poverty level for a family of
three; and
WHEREAS, it is beneficial to the health and welfare of the
citizens of Orange County to be paid a wage which enables them to
not live in poverty; and
WHEREAS, economic development in Orange County provides many
benefits for citizens of Orange County, one of which should be a
wage which enables all working people to not live in poverty; and
WHEREAS, this ordinance provides for a wage, consistent with
other programs operated by Orange County, to meet the employment,
economic development and housing needs of persons of low and
moderate income; and
WHEREAS, Orange County desires to use its authority to
procure services and to pursue economic development in a manner
that improves the health and welfare of the citizens of the
County; and
WHEREAS, it is the purpose of this ordinance to provide for
a living hourly wage rate for workers employed by persons
(natural or otherwise) awarded contracts and economic development
opportunities by Orange County thus enhancing the welfare of
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working citizens of Orange County; now therefore,
BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF ORANGE
COUNTY:
Section 1. This ordinance shall appear as Chapter of
the Code of Orange County, and shall be entitled, "Living Wage, "
with the text of the ordinance to appear as follows:
Sec. -1. Service Contracts with Orange County.
It is the policy of Orange County that all service
contractors doing business with the County pay their workers
a living wage while working on County service contracts.
Sec. -2 . Construction Contracts with Orange County.
It is the policy of Orange County that all construction
contractors doing business with Orange County pay their
workers a living wage while working on County construction
contracts.
Sec. -3 . It is the policy of Orange County that all
persons receiving the benefits of loans from the Orange
County loan pool or receiving economic development loans or
grants from Orange County pay their workers a living wage
for the duration of any loan or grant agreement.
Sec. -4. Definitions.
As used- in this ordinance, the following terms have the
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working citizens of Orange County; now therefore,
BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF ORANGE
COUNTY:
Section 1. This ordinance shall appear as Chapter of
the Code of Orange County, and shall be entitled, "Living Wage, "
with the text of the ordinance to appear as follows:
Sec. -1. Service Contracts with Orange County.
It is the policy of Orange County that all service
contractors doing business with the County pay their workers
a living wage while working on County service contracts.
Sec. -2. Construction Contracts with Orange County.
It is the policy of Orange County that all construction
contractors doing business with Orange County pay their
workers a living wage while working on County construction
contracts.
Sec. -3 . It is the policy. of Orange County that all
persons receiving the benefits of loans from the Orange
County loan pool or receiving economic development loans or
grants from Orange County pay their workers a living wage
for the duration of any loan or grant agreement.
Sec. -4. Definitions.
As used in this ordinance, the following terms have the
009
meanings indicated, unless the context clearly requires a
different meaning:
(a) Board of County Commissioners: The Board of County
Commissioners of Orange County, North Carolina.
(b) County Manager: The County Manager of Orange County,
North Carolina, or his or her designee.
(c) Orange County Living Wage: The minimum hourly wage
rate that shall be paid to those who work on service
contracts with the County, work on construction contracts
with the County or who receive a loan from the Orange County
loan pool or receive an economic development loan or grant
from Orange County.
(d) Person: Any individual, business entity, corporation,
limited liability company (LLC) , partnership or joint
venture.
(e) Service Contract: Those contracts for services to the
County and its agencies in which the County is: (1)
obligated to pay the service contractor $25, 000 or more per
year, and (2) for services which the County could provide
for itself with its own employees, should it decide to do
so. Service Contract shall not include contracts governed
by Stag or federal procurement or bidding requirements, or
those where services are performed by federal, State and
local government units or nonprofit, tax-exempt
organizations. Notwithstanding the foregoing, the Board of
Commissioners may make a determination that a contract with
the federal or State government or a unit of local
government or a nonprofit, tax-exempt organization is one
for which the County could have provided the contracted
service with its own employees, and that upon such
determination the contract shall be subject to the
provisions of this ordinance.
(f) Construction Contract: A contract for the construction
of, renovation of or repair or replacement of a County-owned
or leased facility or a contract for the construction,
replacement or repair of a privately- owned facility where
the contract will be paid for by County funds or federal and
State funds and the program making the contract funds
available is administered by the County. Construction
contracts covered by this ordinance are those in excess of
$25, 000 and shall not include contracts governed by State or
federal procurement or bidding requirements.
(g) Contractor: The person awarded a County service or
construction contract, specifically including all
subcontractors of contractors, and all persons receiving a
loan from the Orange County loan pool or an economic
development loan or grant from Orange County.
(h) Worker: Any employee of a contractor working on a
service or construction contract or working for a person
receiving a loan from the Orange County loan pool or
receiving an economic development loan or grant from Orange
County. A worker working for educational purposes, such as
an intern, coop student and any other as determined by the
County Manager, is not a worker as defined in this
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government or a nonprofit, tax-exempt organization is one
for which the County could have provided the contracted
service with its own employees, and that upon such
determination the contract shall be subject to the
provisions of this ordinance.
(f) Construction Contract: A contract for the construction
of, renovation of or repair or replacement of a County-owned
or leased facility or a contract for the construction,
replacement or repair of a privately- owned facility where
the contract will be paid for by County funds or federal and
State funds and the program making the contract funds
available is administered by the County. Construction
contracts covered by this ordinance are those in excess of
$25, 000 and shall not include contracts governed by State or
federal procurement or bidding requirements.
(g) Contractor: The person awarded a County service or
construction contract, specifically including all
subcontractors of contractors, and all persons receiving a
loan from the Orange County loan pool or an economic
development loan or grant from Orange County.
(h) Worker: Any employee of a contractor working on a
service or construction contract or working for a person
receiving a loan from the Orange County loan pool or
receiving an economic development loan or grant from Orange
County. A worker working for educational purposes, such as
an intern, coop student and any other as determined by the
County Manager, is not a worker as defined in this
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ordinance.
Sec. -3 . Administration of the Living Wage.
(a) Each contractor shall pay its workers working on County
contracts a living wage during those hours that the workers
work on County service or construction contracts, or in the
case of a person receiving a loan from the Orange County
loan pool or an economic development loan or grant from
Orange County, for as long as the loan is outstanding or for
as long as the period of economic development benefit as
defined in the economic development grant agreement .
(b) In order to accomplish the objectives of this
ordinance, the County narrows its pool of eligible
contractors, thus making some contractors not eligible for
consideration for such contracts . Therefore when a
contractor has been awarded a County contract subject to
this ordinance or a loan from the Orange County loan pool or
an economic development loan or grant, subject to this
ordinance, fails to fulfill the requirements of this
ordinance, the County suffers damages. The precise amount
of those damages is difficult to ascertain. Therefore all
contracts falling under this ordinance shall include
language in substantial conformance with the following
paragraph:
In the event of a finding by the County Manager or a
judicial officer that any Worker has been paid less
than the compensation to which the Worker is entitled
under the Orange County Living Wage Ordinance,
Contractor shall make restitution to the Worker for the
amount due. Contractor shall also pay restitution to
the County in the form of liquidated damages in the
amount of Fifty Dollars ($50 . 00) per day for each
employee so underpaid, provided, however, that these
damages shall not be assessed for wage underpayment
violations to any individual which amount to a total of
less than one Dollar ($1.00) in any payroll period.
Should a Worker be found to have been discriminated
against for seeking to enforce the provisions of the
Orange County Living Wage Ordinance, and if the Worker
has been terminated from employment, he or she shall be
reinstated upon an order to do so from the County
Manager or a judicial officer. A flyer stating the
Orange County Living Wage shall be -posted at the
workplace of every Contractor in a location easily seen
by all employees.
(c) When a Contractor has been found to have failed to pay
a Living Wage in the course of performing more than three
separate Contracts in a two year period, the County Manager
may prohibit that Contractor from participating in future
Contracts for up to three years.
(d) Within one year from the date of work performed on a
Contract, a Worker may file a protest in writing with the
County Manager claiming that the amount of wages paid to
that worker on that Contract was less than the Living Wage
at the time the work was performed.
(e) A Contractor shall not discharge, reduce the
compensation or otherwise discriminate against any Worker
for seeking to enforce the provisions of this ordinance.
Actions protected under this ordinance include, but are not
limited to, making a complaint to the County Manager,
participating in any County proceedings, or making use of
any civil remedies. If any violation of this paragraph is
found to have occurred, the County Manager may order
appropriate restitution and the reinstatement of such
Worker, in accordance with the terms of the Contract .
employee so underpaid, provided, however, that these
damages shall not be assessed for wage underpayment
violations to any individual which amount to a total of
less than One Dollar ($1.00) in any payroll period.
Should a Worker be found to have been discriminated
against for seeking to enforce the provisions of the
Orange County Living Wage Ordinance, and if the Worker
has been terminated from employment, he or she shall be
reinstated upon an order to do so from the County
Manager or a judicial officer. A flyer stating the
Orange County Living Wage shall be -posted at the
workplace of every Contractor in a location easily seen
by all employees.
(c) When a Contractor has been found to have failed to pay
a Living Wage in the course of performing more than three
separate Contracts in a two year period, the County Manager
may prohibit that Contractor from participating in future
Contracts for up to three years .
(d) Within one year from the date of work performed on a
Contract, a Worker may file a protest in writing with the
County Manager claiming that the amount of wages paid to
that worker on that Contract was less than the Living Wage
at the time the work was performed.
(e) A Contractor shall not discharge, reduce the
compensation or otherwise discriminate against any Worker
for seeking to enforce the provisions of this ordinance.
Actions protected under this ordinance include, but are not
limited to, making a complaint to the County Manager,
participating in any County proceedings, or making use of
any civil remedies. If any violation of this paragraph is
found to have occurred, the County Manager may order
appropriate restitution and the reinstatement of such
Worker, in accordance with the terms of the Contract.
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(f) The County may withhold or cause to be withheld from
the Contractor so much of any accrued payments owed to the
Contractor as may be necessary to: (1) pay the Workers
employed by the Contractor the full amount of wages required
by the provisions of this ordinance; and (2) satisfy any
liability of the Contractor for liquidated damages accrued
under the terms of the Contract. The County may also
withhold payments from any Contractor who has failed to post
and keep posted a copy of the Living Wage as required
herein, until such default of the terms of the Contract
shall have been corrected.
(g) The County Manager shall cause investigations to be
made as may be necessary to determine whether there has been
compliance with the provisions of this ordinance, the
regulations promulgated thereunder, and those contained in
the Contract. The Contractor shall permit representatives
of the County to observe work being performed upon the work
site, to interview Workers and to examine the books and
records relating to the payrolls on the project being
investigated or the person being investigated to determine
the correctness of classifications and any payment of proper
regular and overtime rates as required. All such
information provided by the Contractor will be treated as
confidential, to the extent permitted by Chapter 132 of the
North Carolina General Statutes, the Public Records Law, as
it may be amended from time to time. Complaints of alleged
violations shall be investigated promptly and statements,
014
written or oral, made by a Worker shall be treated as
confidential and shall not be disclosed to the Contractor
without the consent of the Worker.
(h) If necessary for an investigation authorized by this
ordinance, the County Manager may issue subpoenas, compel
the attendance and testimony of witnesses and the production
of books, papers, records, and documents relating to payroll
records necessary for investigations and hearings. Any such
subpoena shall be served by the Sheriff of Orange County.
In case of refusal to obey or fully comply with any such
subpoena, the person not complying may be summoned before
the General Court of Justice, and upon failure to give
satisfactory explanation of such failure or refusal, the
court shall find the failure to be a misdemeanor violating
Section of the Orange County Code of Ordinances, such
violation punishable by a fine not exceeding $100 per day or
imprisonment for a period not exceeding thirty (30) days.
In addition, the General Court of Justice may issue any
civil orders as may be within its jurisdiction in order to
enforce subpoenas issued under this ordinance.
Sec. -4. Intentional Violation a Misdemeanor.
In the, event the County Manager shall determine, after
notice and hearing, that any Contractor has failed to pay
the Living Wage or has otherwise violated the provisions of
this ordinance and that such failure was intentional, no
contract shall be awarded to such Contractor, or to any
business in which such Contractor has an interest, until one
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written or oral, made by a Worker shall be treated as
confidential and shall not be disclosed to the Contractor '
without the consent of the Worker.
(h) If necessary for an investigation authorized by this
ordinance, the County Manager may issue subpoenas, compel
the attendance and testimony of witnesses and the production
of books, papers, records, and documents relating to payroll
records necessary for investigations and hearings. Any such
subpoena shall be served by the Sheriff of Orange County.
In case of refusal to obey or fully comply with any such
subpoena, the person not complying may be summoned before
the General Court of Justice, and upon failure to give
satisfactory explanation of such failure or refusal, the
court shall find the failure to be a misdemeanor violating
Section of the Orange County Code of Ordinances, such
violation punishable by a fine not exceeding $100 per day or
imprisonment for a period not exceeding thirty (30) days.
In addition, the General Court of Justice may issue any
civil orders as may be within its jurisdiction in order to
enforce subpoenas issued under this ordinance.
Sec. -4. Intentional Violation a Misdemeanor.
In the event the County Manager shall determine, after
notice and hearing, that any Contractor has failed to pay
the Living Wage or has otherwise violated the provisions of
this ordinance and that such failure was intentional, no
contract shall be awarded to such Contractor, or to any
business in which such Contractor has an interest, until one
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year has elapsed from the date of such determination.
Provided, further, that any such intentional violation of
the provisions of this ordinance shall be a misdemeanor,
punishable upon conviction by a fine of not more than Five
Hundred Dollars ($500.00) . Proceedings before the County
Manager shall not be considered a pre-condition to
016.
criminal prosecution under this ordinance. Each day' s
violation shall constitute a separate offense.
Sec. -5. Setting the Living Wage:
The Orange County Living wage, effective July 1, 1998, is
$8 . 00 per hour. The Orange County Living Wage may be
revised from time to time by amendment to this ordinance
adopted by the Board of Commissioners following a public
hearing.
Sec. -6. Severability.
If any provision of this chapter or the application thereof
to any person or circumstances is held invalid, the
invalidity shall not affect other provisions or Application
of this chapter which can be given effect without the
invalid provision or application; and to this end, the
provisions of this chapter are severable.
Section 2. AND BE IT FURTHER ORDAINED, that this ordinance
shall take effect for all service contracts, construction
contracts and Orange County loan pool or economic development
loan or grant contracts entered into after July 1, 1998.
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criminal prosecution under this ordinance. Each day' s
violation shall constitute a separate offense.
Sec. -5 . Setting the Living Wage:
The Orange County Living Wage, effective July 1, 1998, is
$8 .00 per hour. The Orange County Living Wage may be
revised from time to time by amendment to this ordinance
adopted by the Board of Commissioners following a public
hearing.
Sec. -6 . Severability.
If any provision of this chapter or the application thereof
to any person or circumstances is held invalid, the
invalidity shall not affect other provisions or application
of this chapter which can be given effect without the
invalid provision or application; and to this end, the
provisions of this chapter are severable.
Section 2. AND BE IT FURTHER ORDAINED, that this ordinance
shall take effect for all service contracts, construction
contracts and Orange County loan pool or economic development
loan or grant contracts entered into after July 1, 1998.
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