Herrera, Businesses Oppose High Court Review of Key Provision of ‘Healthy San Francisco’

Employer spending requirement not preempted by federal law, argue City; Nibbi Bros. Construction; and Zazie, Medjool Restaurants

SAN FRANCISCO (Aug. 24, 2009) — City Attorney Dennis Herrera was joined by attorneys representing two San Francisco restaurants and a major Bay Area construction firm in filing briefs with the U.S. Supreme Court this morning opposing a petition by Golden Gate Restaurant Association that seeks to overturn an appellate court ruling and invalidate a critical provision of the City’s groundbreaking “Healthy San Francisco” universal health care program. Together, Herrera’s opposition brief on the City’s behalf; an amicus brief by San Francisco restaurants Zazie and Medjool; an amicus brief by Center on Health, Economic & Family Security at the UC Berkeley School of Law; and another amicus brief by San Francisco-based Nibbi Brothers Construction argue that the employer spending requirement enacted as part of the City’s Health Care Security Ordinance is not pre-empted by the federal Employee Retirement Income Security Act, or ERISA. According to the brief by Amicus Curiae Nibbi Bros. Associates, Inc.: “Nibbi Brothers fully supports the goals of the San Francisco Health Care Security Ordinance (“HCSO”) and the benefits it has already accorded to individual employees and the community in general…In addition, as a responsible employer that provides health care for its workers, Nibbi Brothers has an interest in not being at a competitive disadvantage when dealing with employers who choose not to bear any of that societal cost. One of the purposes of the HCSO is to ‘prevent[] a “race to the bottom” in which employers stop paying for employee health care to remain competitive…Nibbi Brothers has a competitive interest in avoiding a ‘race to the bottom,’ and San Francisco’s HCSO is a rational means of promoting that legitimate governmental purpose.”

According to the brief by Amici Curiae Zazie and Medjool: “The Health Care Ordinance serves the interests of amici curiae, Zazie and Medjool, medium-sized restaurants in San Francisco, because it enables these restaurants to act responsibly by providing health insurance coverage for employees while maintaining their ability to compete economically. The ordinance further serves the interests of Zazie and Medjool by enabling the restaurants to protect the health of both employees and customers, by ensuring that employees have access to affordable health care services, and by helping to prevent episodes of food contamination by ill employees. Amici believe that not only is the ordinance in their own interest but it is in the interest of all restaurants and San Francisco residents, because it allows businesses to compete in a fair and level context while also ensuring that all San Francisco workers have access to affordable health care.”

“The Ninth Circuit clearly recognized the fairness and flexibility of San Francisco’s universal health care program program when it held that its employer spending requirement is not pre-empted by federal law,” said City Attorney Herrera. “It’s notable that three San Francisco businesses have now added their own compelling arguments for the high court’s consideration on why ‘Healthy San Francisco’ is fair and flexible from the perspective of employers.”

The case is Golden Gate Restaurant Association v. City and County of San Francisco et al., Supreme Court of the United States, Case No. 08-1515. Additional information on the GGRA v. CCSF case, including PDF copies of the three briefs filed today, can be found on the City Attorney’s Web site at: https://www.sfcityattorney.org.