The Workforce Opportunity Wage Act (Minimum Wage Act) and the Michigan Paid Medical Leave Act (PMLA) originated as citizen-led ballot initiatives for the November 2018 election. They sought to raise the state’s minimum wage and to require employers to provide employees with paid sick leave. However, the initiatives never made it to the ballot because the Republican-led Legislature adopted them in September 2018. During the lame duck session that followed the election, the outgoing Legislature significantly amended the laws to make them less burdensome to Michigan employers. Governor Snyder signed the revised laws and both are set to take effect on March 29, 2019.
On February 13, 2019, Democratic State Senator Stephanie Chang submitted a request for a formal opinion from newly-elected Michigan Attorney General Dana Nessel (a Democrat) on the constitutionality of the Legislature’s adoption and subsequent amendment of the two ballot initiatives in the same legislative term. Shortly after, the House and Senate Republicans stated that they would request an advisory opinion from the Supreme Court on the same issue.
Two Attorney General Opinions have previously been issued on the question of adoption and amendment in the same legislative term. Former Attorney General Frank Kelly issued an opinion stating that such an action is not constitutional, while former Attorney General Bill Schuette more recently issued a contrary opinion.
Attorney General Nessel responded that she would evaluate the request and encouraged all interested parties to submit written comments on the issue to miag@mi.gov by March 6, 2019. The Michigan Supreme Court is not obligated to issue an advisory opinion.
If the Michigan Supreme Court declines to issue an Advisory Opinion and the Attorney General issues an opinion that passage of the amendments was unlawful or unconstitutional, the Attorney General’s Opinion is binding on the Executive Branch unless overturned by a court. In that situation, the original ballot initiatives will take effect, unless a court rules otherwise.
There is no certainty on how this will end. If the original ballot initiatives become law, employers will need to comply with a paid sick leave law and a minimum wage law that are more burdensome than those approved by the Legislature and Governor Snyder. For example, all Michigan employers (not just those with 50 or more employees) will be required to provide up to 72 hours of sick leave to their employees, and many employees not covered by the current Paid Medical Leave Act would be entitled to paid sick leave. In addition, the minimum wage will jump to $10.00/hour immediately, and will increase to $12.00/hour by 2022.
We will be closely monitoring this situation. In the meantime, if you have any questions about either of these laws and the potential effects on your organization, please contact any member of Warner Norcross + Judd’s Labor and Employment Practice Group.