Deciphering Anaheim’s Measure A

Anaheim’s Measure A, sponsored by Ada Briceño’s UNITE HERE Local 11 does not look like it’s going to pass. Its highest-concept portion — providing safety alarms to housekeepers to protect them against sexual assault — was rendered superfluous when Natalie Rubalcava severed that provision from the rest; that deft jujitsu move is likely the reason that Briceño is pursuing a recall against her. I’m told that Business groups are dominating the airwaves in the leadup to the October 3 election. The Council setting the election for that date, rather than bundling it into the the 2024 general election as requested, is the main reason why I might end up favoring it: they had no real need to stack the deck by spending gobs more taxpayer money on a special election — and how else are they going to learn to cut that crap if not by losing a special election or two? That maneuver might end up blowing up in their faces, given that Local 11’s core supporters will definitely come out and their opponents may not be as fired up.

Note that in this post I’ll refer only to “hotel” workers, but it actually includes “event center” workers — defined as sports, entertainment, and convention center venues above a certain size. So, as the owner of the Convention Center and Angels Stadium, the city of Anaheim could be a defendant.

I’m going to give my recommendation another time — once I figure out exactly what I think about it — but for now I am taking on a more modest task: I just want to help readers understand what’s in it.

Notably, this proposed ordinance applies not only to hotels, but also to concert halls, sports facilities, and convention centers containing over 20,000 square feet, whether publicly or privately owned.

Valiant hotel worker squares off against persnickety owner [not in Anaheim]

The Key Portions of Measure A

The obvious nominees for “key portions” are of course the $25/hour wage increase, indexed to keep up with inflation when it’s high and to get ahead of it when it’s low; the eye-popping overtime provisions; the massive rollback of how much a given employee could be ordered to do; and more to be discussed later. To me, though, the key provisions are these:

We’ll get to 6.100.040 through 6.100.080 just below. For now just note that if a hotel operator enters a “bona fide” labor agreement — that is, one with a union that demonstrates “a sincere and good faith intent to organize and represent employees as a collective bargaining representative, including the capacity or ability to do so — then it gets to work out a more relaxed version of these five subsections.

Well, what do these subsections do? I’ll briefly summarize:

.040: Exceed limits on square feet cleaned within 8 hours and you pay DOUBLE TIME FOR THE WHOLE DAY!

For hotels with fewer than 60 guest rooms, housekeepers that clean more than 4000 square feet in an eight-hours workday get — not overtime — but a doubling of their pay for the entire day!

For hotels with 60 or more guest rooms, this double time pay kicks in if a worker exceeds cleaning 3500 square feet.

If someone has to clean six or more “special attention” rooms — ones in which the resident of the room decline cleaning for the previous day — the amount triggering double pay is reduced by 500 square feet. If someone works for less than eight hours, the trigger is pro-rated downward accordingly. If someone works for more than eight hours, so that they get overtime, then the total limit gets pro-rated up accordingly. In all cases, the employer has to indicate the square footage of the rooms — not just regular hotel rooms, but game rooms and other special purpose rooms.

Three other schemes to get more out of workers are also included.

But remember: these limits can be superseded if the hotel has a contract with a hotel workers union!

.050 CHANGE IN CONTROL

If control of the hotel changes, notifications of it, with contact information of the new controlling entity must be prominently posted within five days and stay up for six months.

.060 WORKER RETENTION

Some new rules regarding workers being able to keep their jobs even if ownership changes. Sort of abstruse and seems unobjectionable.

.070 MINIMUM WAGE REQUIREMENTS

Thirty days after the ordinance passes, the minimum wage for hotel workers goes up to $25/hour. Beginning January 1, 2026, workers get cost-of-living increases of the greater of 3% or the result of a formula put out by the U.S. Department of Labor’s Bureau of Labor Statistics, describing the effects of inflation are for similar workers in Greater Los Angeles.

But remember: these limits can be superseded if the hotel has a contract with a hotel workers union!

.080 SERVICE CHARGES MUST GO ENTIRELY TO EMPLOYEES

You can go up to the link at the top and read this section if you wish: the gist is that if the management calls something a “service charge” then the money is pooled and disbursed to those actually providing the services.  (Money left on the table or nightstand is not pooled.)

But remember: these limits can be superseded if the hotel has a contract with a hotel workers union!

NOW LET’S RETURN TO THOSE KEY SECTIONS

These five contract provisions — of which .040 and .070 are much more than an inconvenience — can be superseded (displaced, overruled) by an employer agreement with a bona fide union, which in Anaheim pretty much means UNITE HERE Local 11.  For Anaheim activists Mike and Jeanine Robbins, that’s the whole point of this agreement: to use the threat of mandatory actions to coerce hotel employees to affiliate with Local 11.  No employer wants to have to go back and pay double-time, rather than mere overtime, because a sudden need to send an employer who has cleaned 3600 square feet to a different floor lowers their daily allotment of square footage to clean by 500 and moves their day’s allocation from 4000 to 3500.  It’s a great rallying point for employees, but patently unreasonable for employers.  So it puts a strong pressure on small hotels in particular to affiliate, because they can’t afford the consequences of refusing.

Of course, there is another possibility: the small hotels could sell out to larger ones who are already affiliated with Local 11.  This may be good for Local 11 — it now gets dues from those employees — but consolidating properties in fewer hands is bad for the competitive market and will lead to higher room rates by making things hard for bargain-hunting tourists.  And while the Robbinses are small business owners, who hold the interests of that class dear, I have to agree that I’d rather support small business owners than big business owners.

Where I differ from the Robbinses is this, which I’ll represent as a syllogism:

MAJOR PREMISE: If a legal provision is in this proposal, it must be important
MINOR PREMISE: The only comparative advantage Local 11 can offer to hotel owners is to undercut these legal provisions
CONCLUSION: Local 11 is only valuable to hotel owners if it is willing to undercut what it asserts are important legal provisions.

In other words, either these provisions are important for workers and they should not be able to be diluted in exchange for an employer’s benefit, or they are not important and they should not be enacted at all. I don’t know enough about whether cleaning 5000 or 4000 or 3500 or 3000 square feet should be a maximum before some employers penalty kicks in — but I’m pretty confident that the proper solution for exceeding it should be double or maybe even triple overtime for those hours rather than essentially the cost of hiring a new employee.

And I think that it is a huge problem if UNITE HERE can allow some employers to live by more realistic rules (in exchange for benefitting their bottom line) while others are left to suffer with them. I have a hard time believing that this would comport with the California Business & Professions Code — and I have as hard a time believing that UNITE HERE under Briceño would have given the matter careful thought.

Some provisions — .050, .060, and .080 — seem to me to be reasonable and should be the City Council. But I wonder what those room square footage maximums would be if there were no “Supersession Clause.”

The reasonable thing for the Council to approve — after this fails and before a new-and-improved version is passed — is to exclude .040 and .070 from the supersession clause. Then, we’ll find out from UNITE HERE what the real numbers should be — when they can’t gain new members from undercutting them.

(I’ll note here that while I’d love to see a higher minimum wage, I don’t think that it’s best to do it piecemeal — affecting only those workers who happen to be represented by the union heading by the head of the local chapter of the state’s dominant political party. That is a very ugly look — and one not good for the labor union as a whole.

THIS AGREEMENT MIGHT RENDER UNITE HERE IRRELEVANT!

That subheading might seem implausible. Read it through to the end before you judge!

First, let’s note that this ordinance does not look much like most ordinances. Instead, it looks like a good portion of a collective bargaining agreement (“CBA”). What this essentially does is to put all hotel workers in the city under a default CBA — and, as noted above, a pretty harsh one — that will be in place even in the absence of a union-negotiated CBA, which as noted above would have to be less harsh. (Yes, there are also benefits that may accrue to union members — although that may involve some overpromising — as well as costs, starting with dues. But by definition, those existing benefits would have been insufficient to get them to join Local 11, or they would have already done so.)

But let’s look at this through the green eyeshades of a profit-seeking employer — maybe one who does sometimes break the rules a little. The union will probably do a good job of bringing grievances, because that’s one way to demonstrate its value to its members. But what if they don’t sign up? Will they still get in trouble? That leads us to the second section in the excerpt above: enforcement of the agreement.

First, they could file a lawsuit over it, under 6.100.150.20 — but the costs, especially with the “winner gets fees” provision in subsection 150.50 the agreement, makes that a fraught option, especially with low stakes. (The latter section includes payment of expert witness fees — a potentially huge deterrent to litigation.) But the major action in the ordinance is in subsection 150.10, which requests enforcement by the city. Here’s how that plays out, with modal words emphasized. [Note that I’ve substituted the word “can” for “may,” because statutory drafters now recognize that “can” refers to ability to act, which includes permission, while “may” has come to include the meaning of “might” — i.e., “may or may not”)]:

  1. Worker claiming a violation can report it to the Anaheim City Manager
  2. City Manager shall cause investigation of the complaint
  3. If City Manager or their designee finds out about a violation (through complaint or otherwise), they shall issue a written notice to cure within a 10-day period
  4. If no cure has been shown by that time, City Manager or designee can request the City Attorney to pursue a civil action against the employer under 150.20
  5. An aggrieved employee can also file a civil action without first complaining to the City Manager
  6. Under 150.30,
  7. Under 150.70, no criminal penalties can be imposed
  8. Under 150.60, the penalties can be cumulative, so that many could be filed at once — but I don’t see any statute of limitations indicated. (If this were established a contract, it would be 4 years by default; I’m not sure of the default SOL for an infraction of a municipal ordinance, but I’d bet it’s less than 4 years.)

However, under subsection 150.90 employers may also be able to obtain a “limited waiver” exempting them from “particular” provisions of this ordinance (it’s not clear which or how many, but the one already passed, the safety provision in 6.100.030, cannot be waived) if they can “demonstrate, with evidence, that such requirements would require the employer, in order to avoid bankruptcy or a shutdown of the hotel [], to reduce its workforce by more then 20% or curtail its total work hours by more than 30%.”

But, the “City Manager shall grant such a waiver only after reviewing an employer’s evidence of it’s financial condition at the employer’s expense. [I’m not sure what that means: paying for an outside auditor?] The waiver granted can be valid for no more than one year. A determination to grant or deny such a waiver may be appealed to the City Council within 14 days after the City Manager’s action.”

Before applying for a waiver, “a hotel employer [] shall provide written notice of the waiver application to all workers, as applicable, employed by the employer. Within (3) days of receiving a waiver determination from the City Manager, under this section, a hotel employer [] shall provide written notice of the determination to all hotel workers” who received the above notice.

So: among the things that can be waived by the City Manager — even selectively, given the lack of language to the contrary, to the benefit of some employers and not others — at their own discretion. (Amazingly, one of the provisions that can be waived is the “anti-retaliation” requirement of subsection 6.100.110 — so good luck with that, aggrieved employees!) The City Council is ill-disposed towards this ordinance, so I would expect to see strong pro-waiver sentiment directed towards any City Manager — and City Managers tend to know who butters their bread.

So: what would you do as a (usually smaller) hotelier whose employees are not already organized?

(1) Allow the employees to organize under UNITE HERE without major written concessions from them?

(2) Allow the employees to organize under UNITE HERE only if it makes major written concessions?

(3) Do not organize under UNITE HERE and let the City Manager use their options — such as everywhere the word “can” appears in the above document — to refuse to go forward with a prosecution, and dare employees to go forward with civil suits?

I seriously wonder if the advantages of having the city have the primary responsibility of going forward with a prosecution exceed the advantages of having the union be able to grieve under a contract. There a just so many ways to kill a complaint — meaning leaving the employee to file their own action — without leaving much of a mark! (Waivers can take into account the status of the economic health of the city — because, it might be thought, having people employed is simply better for both them and the city. And where waivers are not permitted when an employer isn’t sufficiently economically threatened, the use of discretion in the “can” sections indicated above could do the trick.)

In fact, I wonder if some hotel owners and workers might decide that that are so much better off without this agreement — shifting most of the enforcement burden onto the city rather than at the discretion of the union itself (where, if they don’t decide to bring a case against the employer, the employer’s recourse is to bring an action against the union instead!) — that you could see workers at various hotels disaffiliate with the union!

And THAT is the “making UNITE HERE IRRELEVANT” that you see in the section title!

Look, union are useful for a number of things:

  • creating a good collective bargaining agreement, including wage and working condition protections
  • making complaints to employers and trying to mediate them
  • leading strikes and other collective actions
  • other things that don’t immediately spring to mind because they aren’t directly relevant to the point I make below

Of these, creating a good collective bargaining agreement and being an intermediary in complaints are probably the most crucial. And what Measure A does is to give workers a pretty impressive collective bargaining agreement, with lavish wage protection and as good other protection as they would likely receive otherwise, without further union involvement!

Do they still even need UNITE HERE if this passes?

My bet is that they wouldn’t necessarily need the union, because the benefits are not limited to union members — so they can “free ride.” (In fact, the only thing that unions can do, with respect to the applicability of these provisions to their workers, is to bargain them away under the supersession clause, as discussed above, to give employers a reason to allow unionization!)

Like I said — I don’t think that Measure A is going to pass, so I don’t think that we’ll ever get a chance to see whether my predictions of how it would operate will come true. But if this story garners it a lot more votes because people agree that its major effect might be to screw over UNITE HERE, then you’re welcome for the boost to your “Yes on A” campaign, Local 11!

About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)