Constitutionality of Paid Sick Leave, Minimum Wage Laws Called into Question

February 25, 2019

A state senator has called into question the constitutionality of legislation passed last session to amend Michigan’s paid sick leave and minimum wage laws and is asking the Attorney General to issue an AG opinion on the matter. Given that an unfavorable AG opinion could turn the paid sick leave and minimum wage laws on their head, the Michigan House and Senate responded last week by asking the Michigan Supreme Court to weigh in on the question. The Michigan Chamber supports the Legislature’s efforts and is hopeful the Supreme Court will undertake the requested review and bring clarity to the state of the law prior to the March 29 effective date.

Although there remains much uncertainty regarding the status of the law, we recommend that employers continue to prepare to comply with the law as amended in December. These changes are slated to go into effect on March 29. Compliance on the paid sick leave law can be found here and on the minimum wage law here.

The paid sick leave and minimum wage laws were adopted after ballot proposals on the two issues were certified for the November general election ballot. In adopting the proposals, lawmakers removed both proposals from the November general election ballot (where they were all but certain to pass) and retained their ability to amend the proposals with a simple majority vote. They did so in December of 2018. The AG and Supreme Court were recently asked to weigh in on the constitutionality of the laws, specifically whether the Michigan Constitution prohibits the Legislature from amending an initiated law during the same two-year session in which the Legislature adopted it.

An unfavorable opinion by the AG or Michigan Supreme Court could cause the state to enforce the original language in the ballot proposals come March 29, 2019. For paid sick leave, this means the state would enforce a paid sick leave mandate that applies to all employers, large and small (no carve-outs or exemptions). It would require all employees to receive one hour of paid sick leave for every 30 hours worked, up to 72 hours per year. It would have an impact on all employers - even those offering paid leave time today. It would limit the ability of employers to require advanced notice and to implement call-in procedures. It would limit the ability of employers to require a doctor’s visit and note. It would allow leave time to be used in as little as seven-minute increments. And, it would open employers to employment-related litigation, fines and damages. As for the minimum wage, an unfavorable opinion by the AG or Michigan Supreme Court could cause the state to enforce a minimum wage increase from $9.25 to $10 on March 29 and to $12 per hour by 2022. 

The Michigan Chamber remains hopeful the Michigan Supreme Court will recognize the current level of uncertainty on these issues and will issue an opinion in this important and precedent-setting issue. Doing so would avoid a protracted legal battle and give employers certainty prior to the March 29 effective date of these laws. 

If the Michigan Supreme Court opts to hear the case, we will engage, making the concerns of the business community known. If the AG issues an unfavorable opinion and the Supreme Court refuses to take the case, we will be exploring our options in the Michigan Court of Claims. 

Please contact Wendy Block with any questions at wblock@michamber.com.