The Building Tradesman Newspaper

Friday, June 28, 2019

'Undo and screw' case for minimum wage and leave time in Supreme Court's lap

By Marty Mulcahy, Editor

LANSING - The legal ability of Republican lawmakers to change the language in a citizens-backed petition drive is a matter that's being presented to the Michigan Supreme Court.

The court scheduled a hearing to hear arguments on July 17 as the first step in a push by Democrats and Republicans in the state Legislature and Gov. Gretchen Whitmer as well as state Republicans, to determine the constitutionality of an action taken last year by state Republican lawmakers. 

GOP lawmakers on Sept. 5 voted to adopt two petition proposals originally slated to go on the Nov. 6 general election ballot that would have: 

1. Raised the minimum wage to $12 per hour, and

2. Required employers to provide paid sick leave time to their employees.

Polling indicated that both proposals would easily get voter approval. But the Legislature's vote negated the need for the proposals, which had ample petition signatures, and they didn't appear on the Nov. 6 ballot.

During the 2018 Lame Duck session in the Legislature, Republican lawmakers then made business-friendly amendments to the same laws they approved three months earlier, extending the period it would take to earn the higher minimum wage while limiting the availability of paid leave time for workers.

"One thing, however, cannot be stressed enough: the violence this 'adopt and amend' maneuver does to the core constitutional values of this state and the democratic dignity of its people," says a legal brief filed June 19 by Whitmer's office, which concurs with a filing by Nessel's office. 

Whitmer's Chief Legal Counsel Mark Totten, who wrote the brief to the Supreme Court, called it "an unprecedented power grab, plain and simple, and an affront to the rule of law. It must never happen again. The people of Michigan -- the keepers of all political power -- are entitled to more under their Constitution, and to better from their elected representatives." Instead of "adopt and amend," a group of Democratic lawmakers called the process "undo and screw."

An opinion issued on Dec. 3 by then-Attorney General Bill Schuette to then-Senate Majority Leader Arlan Meekhof said "since nothing in the Michigan Constutution prohibits the Legislature from amending legislation it drafts during the same legislative session in which it was enacted, it follows that the Legislature may do so as well with respect to an enacted initiated law."

Filing a legal brief with the Supreme Court last month in support of Schuette's opinion was a host of business groups, under the umbrella of "Counsel for Small Business for a Better Michigan Coalition," including the Associated Builders and Contractor and the Michigan Chamber of Commerce. The coalition suggested that a ruling from the Supreme Court would "bring certainty to employers and employees seeking to enter into and continue  existing employer–employee relationships...."

The two pieces of pro-worker legislation watered down by state Republicans included:

*A minimum wage rollback. Hundreds of thousands of Michiganians signed a petition to place on the Nov. 6 ballot a raise to Michigan's minimum wage to $12 per hour by 2022 (it's currently $9.45). Instead of letting the language go to the Nov. 6 general election ballot, Michigan's Republican-led Legislature initially raised the minimum wage to $9.45; it was $10 under the citizens' petition. And under the new law, after 2019, the Republican plan raises the state's minimum wage by 23 cents per hour until it equals $12.05, which would happen by 2030. The citizens petition called for that $12 raise to happen by 2022. The Republican-backed legislation also removes automatic upward inflation adjustment of the wage after it reaches $12.05 per hour. Tipped employees would also see lesser wage hikes under the GOP plan than the citizen's initiative.

*Sick time leave. A similar petition effort which gained hundreds of thousands of signatures - also intercepted by the GOP last fall - would have initiated a plan to allow employees to immediately accrue sick leave time and be able to use it within 90 days. The petition language also would have allowed employees to accrue one hour of leave time for every 30 hours worked (increased to 35 by the GOP), and it required employers to offer up to 72 hours of paid sick leave per year (the GOP language reduced that to 40 hours). 

In addition, the Republican sick leave proposal does not apply to businesses with fewer than 50 employees. The citizen-backed law required businesses with fewer than 10 employees to offer at least 40 hours of paid sick leave, with another 32 hours of unpaid leave.