By Daniela Porat

Law360 (February 22, 2021, 5:28 PM EST ) The city of Seattle urged a Washington federal judge to toss a lawsuit over its pandemic hazard pay ordinance, arguing that the grocery industry groups' suit seeks a "return to the 19th century" with its focus on private agreements over public health and welfare.

In a Thursday filing, Seattle asked U.S. District Judge John Coughenour to toss the Northwest Grocery Association and Washington Food Industry Association's suit. The city argued it rightfully exercised its authority to safeguard public health and implement worker protections when the mayor signed into law an ordinance mandating pandemic hazard pay for grocery workers earlier this month.

"For more than eight decades, the unquestionable law of the land has enabled local governments to impose minimum compensation requirements on businesses," the city said in its motion to dismiss. "Plaintiffs now urge this court to return to the 19th century and elevate their private arrangements to purchase labor over public health, safety, and welfare."

The nonprofit trade groups, representing grocers, sued Seattle in early February, claiming the city's ordinance requiring a $4 per hour pay increase for store workers is invalid, according to the original complaint, which seeks to toss out the law. It's part of a spate of suits over a handful of "hero pay" laws passed around the country.

They argued the law disrupts the employer-employee balance of power in collective bargaining and violates federal equal protection laws by singling out grocery stores and that "no significant and legitimate public purpose exists for the ordinance."

On Thursday Seattle pushed back against the suit, asserting that since the city's power to regulate workplace safety, minimum wage, and public health is legitimate "under normal circumstances," this power is all the more paramount in the face of a public health crisis, according to the motion.

Seattle said that under precedent set in the 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts , which upheld Cambridge's right to require smallpox vaccination during the smallpox outbreak, the city's authority is broadened amid a public health crisis.

The Seattle City Council acted within its legislative power when it determined that grocery store workers are "essential to providing safe access to food during the pandemic, that hazard pay is essential to retaining these critical workers, and that hazard pay improves the financial ability of those employees to access the resources they need to stay safe and healthy," the city said in the filing.

The city also pushed back against the grocer groups' claims that the ordinance discriminates against grocers, saying these claims are "meritless," and that the rights afforded to businesses to contract are not absolute, like the right to vote.

Seattle slapped down the grocery associations' claims that the ordinance infringes upon labor practices protected by the National Labor Relations Act . The ordinance applies to both union and nonunion labor and the courts have regularly affirmed that NLRA requirements do not trump general local workplace standards, Seattle argued in the motion.

Plus, even if this municipal order were to negatively influence an employer's collective bargaining position, such an impact would not represent a de-facto violation of the act, Seattle said.

"Such an exercise of the city's authority to protect public safety, health, and welfare cannot be swept aside by private contracts for labor," the motion said.

Notably, Seattle pointed out in the motion that the ordinance does not wholesale prevent employers from decreasing employee pay.

"The City of Seattle acted to support and protect frontline grocery store employees who are increasingly vulnerable to COVID-19 exposure and continue to provide a crucial service to the community," Seattle City Attorney Pete Holmes said in an email to Law360 Monday. "This lawsuit has no cognizable legal basis, so we're hopeful the judge will grant our motion to dismiss this lawsuit."

Last June, Instacart sued Seattle over a similar ordinance requiring hazard pay for gig food delivery workers.

Representatives from the Northwest Grocery Association and Washington Food Industry Association and their attorneys did not immediately respond to requests for comment.

The Northwest Grocery Association and the Washington Food Industry Association are represented by Adam S. Belzberg and Vanessa Soriano Power of Stoel Rives LLP, William F. Tarantino and Tritia M. Murata of Morrison Foerster LLP

The city of Seattle is represented by Seattle City Attorney Peter S. Holmes and assistant city attorneys Jeremiah Miller, Erica Franklin and Derrick De Vera.

The case is Northwest Grocery Association et al v. City of Seattle, case number 2:21-cv-00142, in the U.S. District Court for the Western District of Washington.

--Editing by Tim Ruel.

Update: This story has been updated with a comment from the Seattle city attorney.

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