When the Michigan Legislature voted back in 2018 to adopt and amend ballot initiatives involving the state’s minimum wage and paid sick leave policy, they were acting within their legal rights, according to a Thursday decision from a Michigan Court of Appeals.
The court voted unanimously to overturn a Court of Claims ruling from last July and said the Legislature, which was controlled by Republicans at the time, were working within the framework of the state constitution when they adopted petition initiatives and amend state policy, rather than placing the questions on the ballot in November 2018.
The panel included Court of Appeals Judges Christopher Murray, Michael Kelly and Michael Riordan. In his published opinion, Murray concluded the Michigan constitution contains no specific language stopping legislators from adopting laws initially brought forward by petition initiative and amending those laws in the same legislative session.
“The constitutional convention record squarely supports the conclusion that there was no intention to place a temporal limit on when the Legislature could amend initiated laws enacted by the Legislature,” Murray wrote.
Both sides agreed the battle over the issue probably isn’t over, with an appeal to the Michigan Supreme Court likely.
In alert to clients, Butzel Long labor attorney Rebecca Davies said it’s “probably not the end of the road for this issue.”
“Most likely that review will be sought from the Michigan Supreme Court,” said Davies, a partner/shareholder in Butzel Long’s labor and employment practice group. “In the meantime, employers are relieved of any obligation to provide additional paid time off and follow an increased wage that was set forth in both the Earned Sick Time Act and the original version of the 2018 Improved Workforce Opportunity Wage Act.”
The Court of Appeals ruling reverses a July 2022 decision by Court of Claims Judge Douglas Shapiro, who ruled the Legislature acted unconstitutionally in 2018 when it adopted the legislation and then, in the same session, amended it to put in lower wage thresholds.
Those changes increased the minimum wage to $12.05 by 2030 instead of 2022 and kept the tipped minimum wage at 38% of the standard one.
Shapiro’s ruling also covered a separate petition that would have required Michigan employers to provide one hour of paid sick time for every 30 hours of work.
Employers with fewer than 10 employees would have to allow employees to accrue up to 40 hours of paid sick time annually, and employers with 10 or more would have to allow employees to accrue up to 72 hours of paid sick time per year.
With its 2018 amendments, the Legislature amended the petition and removed requirements for employers with fewer than 50 employees.
The Court of Appeals ruling leaves the minimum wage stays at $10.10, and the minimum wage for tipped workers – those expected to earn the bulk of their pay through tips – at $3.84 an hour.
If the Court of Appeals had upheld the Court of Claims ruling, the minimum hourly wage would have increased to $13.03 an hour. The tipped minimum wage would have increased to $11.73 an hour before being eliminated altogether and putting tipped employees at the regular minimum wage on Jan. 1, 2024.
In July, Court of Claims Judge Douglas Shapiro ruled the Legislature acted unconstitutionally in 2018 when it adopted legislation created through a petition initiative originally intended to enact the wage changes, but in the same session amended the language to put in lower wage thresholds that increased the minimum wage to $12.05 by 2030 instead of 2022 and kept the tipped minimum wage at 38% of the standard one.
Shapiro’s ruling also addressed a separate petition initiative originally designed to require Michigan employers to provide one hour of paid sick time for every 30 hours of work. Employers with fewer than 10 employees would have to allow employees to accrue up to 40 hours of paid sick time annually, and employers with 10 or more would have to allow employees to accrue up to 72 hours of paid sick time per year.
In 2018, the Legislature amended the petition to remove requirements for employers with fewer than 50 employees.
The fact the ruling was unanimous doesn’t necessarily mean all three judges agreed with what legislators did.
In a concurring opinion, Judge Michael Kelly labeled the “adopt and amend strategy” as “anti-democratic,” but said the strategy met constitutional standards.
“If the individuals responsible for this maneuver ever wonder why public opinion polls consistently cast politicians low when it comes to the virtue of trust, they need look no further than what they did here,” Kelly wrote. “It is a direct assault on one of the rights our founding fathers and the drafters of our state constitution held dear: the right of the citizens to petition their government.”
