Michigan’s minimum wage will rise to $9.45 per hour on Friday, the same day new state requirements for employers to offer paid sick leave also take effect.
Democratic Attorney General Dana Nessel and the Michigan Supreme Court are mulling whether to weigh in with opinions addressing two unresolved questions — whether the laws themselves are legal, and whether the Legislature can, under the state constitution, adopt citizen-initiated legislation and later change it during the same legislative term, as the Republican-majority Legislature did with both laws last year.
Neither Nessel’s office nor the court has said when it will decide whether to release an opinion. But legislators from both parties, who requested the opinions, and employer groups have asked for clarity on the issue sooner rather than later.
“We are telling (our members) there are these two pending decisions and that we’ll communicate as soon as we learn anything different,” said Wendy Block, vice president of business advocacy for the Michigan Chamber of Commerce, which supports the Legislature’s last-minute changes to both laws in December’s lame-duck session.
“Right now, everybody’s kind of holding their breath waiting to see what might happen in the next few days. No matter what, something’s going to go into effect on Friday.”
The Michigan Department of Licensing and Regulatory Affairs, which will be tasked with enforcing both laws, has posted frequently asked questions about the paid sick leave law on its website, along with information about the upcoming minimum wage increase.
The controversy around these issues has not waned even three months after outgoing GOP Gov. Rick Snyder signed them into law in the final days of his administration.
Two ballot committees, Michigan One Fair Wage and MI Time to Care, last summer earned enough signatures from registered Michigan voters to get their proposals to raise the state’s minimum wage and require paid sick leave, respectively, onto the November 2018 ballot.
Michigan’s constitution, however, allows the Legislature to adopt citizen-initiated laws before they go to voters. And Republican lawmakers, who adamantly opposed both measures, saw an opening: They would approve the laws with an eye toward neutering them later. So in September, the GOP-controlled House and Senate voted along mostly party lines to adopt the proposals to raise Michigan’s minimum wage to $12 an hour by 2022 and require employers to offer 72 hours of paid sick leave.
Then, in a contentious lame-duck move, they weakened the strongest provisions before the two-year legislative term ended in December. In signing the bills, Snyder said he believed the original citizen-drafted laws would have been a roadblock in Michigan’s ongoing economic recovery.
Now, Michigan’s minimum wage now will not reach $12 (actually, $12.05) until 2030, eight years later than the original timetable. And employers will be required to offer 40 hours of sick leave, instead of 72. Businesses with fewer than 50 employees will be exempt from the sick leave law under the lame-duck changes. The Legislature also kept a lower minimum wage for employees who receive tips as part of their job, such as restaurant servers. One Fair Wage’s proposal would have phased that distinction out until all minimum-wage workers earned the same hourly rate.
Republican legislators have said they are confident their lame-duck maneuvering is on solid legal ground, and in February asked the Michigan Supreme Court to issue an advisory opinion to resolve the remaining uncertainty. Business groups say the laws as originally written would have been onerous and made compliance difficult.
Backers of the ballot initiatives and Democratic lawmakers, meanwhile, say the Legislature’s revisions circumvented the will of hundreds of thousands of Michigan voters who wanted the chance to vote on the more-generous minimum wage and sick leave proposals as written. State Sen. Stephanie Chang, D-Detroit, asked Nessel’s office to issue an opinion on the constitutionality of the Legislature’s actions, while the committee behind the paid sick leave drive has signaled it may try again for the November 2020 ballot.
“I would like whatever (option) means that we could have democracy upheld, and the will of the people,” said Danielle Atkinson, co-chairwoman of the MI Time to Care ballot committee, who added she was pleased Nessel’s office has said it would review Chang’s opinion request.
As for 2020, Atkinson said: “We are prepared to go back and hit the streets and talk to people if we don’t get what we need, either way.”
Alicia Renee Farris, state director of the Restaurant Opportunities Center of Michigan and chair of the Michigan One Fair Wage steering committee, said in a statement that “gutting the One Fair Wage proposal during lame duck was blatantly unconstitutional, tramples the democratic process and undermines the rule of law. We are hopeful the Michigan Supreme Court will stand with Michigan workers and the more than 400,000 Michigan voters who signed the One Fair Wage petition and approved raising the minimum wage to $12 for all Michigan workers.”
Legal questions unsettled
Nessel’s opinion, if she issues one, would follow contradictory opinions from two past attorneys general on the Legislature’s ability to adopt and later revise citizen initiatives.
The first such opinion, from Democratic Attorney General Frank Kelley in 1964, advised that the Legislature can’t adopt and amend citizen initiatives in the same legislative term in which they were passed. The second, from Republican Attorney General Bill Schuette in December, argues that nothing in the state constitution prevents the Legislature from doing so.
Schuette’s opinion on the issue argued that it supersedes Kelley’s “to the extent it opined to the contrary.” Courts generally have found Attorney General opinions to be binding on state agencies.
Kelly Rossman-McKinney, a spokeswoman for Nessel, told Bridge that an opinion is not expected before the law takes effect this week. The request is still under review, she said, and the attorney general is waiting to see if the Supreme Court will weigh in.
“As such, this status is akin to pending litigation — and the AG has traditionally refrained from opining on matters that are the subject of pending litigation,” Rossman-McKinney said in a statement.
It’s unclear whether the state Supreme Court will even issue an opinion. A rarely used provision of the Michigan constitution allows the legislature and governor to ask the state’s high court for an opinion on whether a law that has been enacted is constitutional, before it takes effect.
The Supreme Court can choose not to issue such an opinion. In at least the last decade, more requests for Supreme Court advisory opinions were rejected than granted, court spokesman John Nevin told Bridge last month.
The last time the court granted a request was eight years ago, in response to Snyder’s inquiry about the constitutionality of a new tax on some retirement income.
“There’s a lot of hesitation about whether to do it, to issue an advisory opinion, and most often when they’re asked, they decide not to,” said Richard Friedman, a law professor at the University of Michigan Law School, who said he has not followed the minimum wage and sick leave issue. “It’s not in the ordinary litigation process and it’s not what courts are used to doing.”
Past Supreme Court opinions have noted that its advisory opinions don’t set precedent the same way as an opinion issued through the traditional litigation process, according to opinions cited by Nevin, the court spokesman. It’s possible the minimum wage and paid sick leave laws could wind up challenged in court, particularly if the Supreme Court decides not to write an advisory opinion.
In court, “the Attorney General’s opinion (has) persuasive value, meaning that a court will look at it,” Friedman said.
That said, he added, “you would pay much more attention” to the Supreme Court’s advisory opinion.