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Law360 (January 25, 2021, 7:40 PM EST ) A Long Beach, California, city ordinance requiring that grocery stores pay workers a premium due to COVID-19 can stay in effect while a challenge from a grocers' association moves forward in California federal court, after a judge refused to block the requirement.
In proceedings in chambers Friday, U.S. District Judge Dolly M. Gee denied the request from the previous day by the California Grocers Association for a temporary restraining order to stop enforcement of the ordinance, saying the group had failed to show that its members would face imminent irreparable harm without the injunction.
"Plaintiff, which brings this action on behalf of its members operating grocery stores in the City of Long Beach, fails to establish how it will be irreparably prejudiced or harmed if the underlying request for injunctive relief is heard according to noticed motion procedures," Judge Gee said in the order.
Besides bumping up pay for grocery workers during the pandemic, the ordinance enables grocery store workers to sue employers for violations, according to the order.
But Judge Gee said the CGA had argued only that grocers could potentially face lawsuits from workers, which was not enough for an injunction.
"Plaintiff only speculates that any of its members' employees will imminently bring litigation to enforce the ordinance if its members do not comply," and speculation cannot support a claim of irreparable harm, Judge Gee said. The judge said the association's claims that the requirement will cause reputational harm and damage to stores' goodwill were also "only conclusory assertions."
Judge Gee also said that the city should get to file additional opposition to the CGA's request, and the judge scheduled a Jan. 29 deadline for that filing and another hearing for February.
The association had sued the city Jan. 20 over its Premium Pay for Grocery Workers Ordinance, which requires certain grocery stores to temporarily increase the amount they pay workers during the pandemic. The City Council had approved the requirement the previous day, and it was set to take immediate effect.
On Jan. 21, the CGA filed in court for the temporary restraining order to halt enforcement of the ordinance. The group argued that the ordinance was unconstitutional and that the National Labor Relations Act preempted it.
The CGA has more than 300 grocery retailer members, according to its website.
Ron Fong, the CGA's president and CEO, said the court's decision was disappointing.
"Grocers in Long Beach are disappointed that the court ignored the significant negative impacts of this ordinance and refused to grant a short pause on its effective date. We look forward to the hearing on Feb. 19," Fong said in a statement CGA provided Monday.
Counsel for the CGA was not immediately available to comment. Counsel and spokespeople for the city of Long Beach also were not immediately available.
The CGA is represented by William F. Tarantino, Byung-Kwan Park, Robert Santos Sandoval and Tritia M. Murata of Morrison & Foerster LLP.
The city of Long Beach is represented by Christopher M. Pisano of Best Best & Krieger LLP.
The case is California Grocers Association v. City of Long Beach, case number 2:21-cv-00524, in U.S. District Court for the Central District of California.
--Additional reporting by Melissa Angell. Editing by Vincent Sherry. Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
