Supreme Court Hears Oral Arguments on Paid Sick Leave, Minimum Wage Changes

July 19, 2019

The question surrounding the constitutionality of the Michigan Chamber-supported changes to the paid sick leave and minimum wage ballot proposals made last year now rests in the hands of the Michigan Supreme Court. It remains uncertain if, or when, they may issue an opinion.

At the Legislature’s request to issue an advisory opinion on the constitutionality of legislation passed in 2018 to amend Michigan’s paid sick leave and minimum wage laws, the Court heard oral arguments on the following matters:

  • Whether the Court should exercise its discretion to grant the Michigan Legislature’s request to issue an advisory opinion in this matter;
  • Whether Article 2, Section 9 of the Michigan Constitution of 1963 permits the Legislature to adopt an initiative petition into law and then subsequently amend that law during the same legislative session; and
  • Whether Public Act 368 of 2018 and Public Act 369 of 2018 (the minimum wage and paid sick leave laws) were enacted in compliance with Article 2, Section 9 of the Michigan Constitution of 1963. 

The Michigan Chamber, along with the Small Business for a Better Michigan coalition, filed an amicus brief in support of the Court issuing an advisory opinion and the Legislature’s actions in accordance with the Michigan Constitution. The Michigan House and Senate also filed briefs in support. 

At the Court’s request, the Attorney General briefed and argued both sides of the issue. Deputy Solicitor General Eric Restuccia argued in support of the legislative changes to the law but also argued the Court doesn’t have jurisdiction to issue an opinion after the effective date because the audience for an opinion is the Legislature or executive, not other courts.  Attorney John Bursch, who represents the House and Senate, generally agreed with Restuccia’s arguments but encouraged the Court to issue an advisory opinion. Solicitor General Fadwa Hammoud argued otherwise, calling the Legislature’s actions “a slap in the face” to people. Attorneys Sam Bagenstos and Mark Brewer similarly argued in opposition to the legislative changes. 

It is important to note that the Court still has not indicated whether it will issue an advisory opinion on this matter.  If the Court does not rule, the Attorney General could issue an opinion finding the law to be unconstitutional (thereby directing state agencies to enforce the original ballot proposal language – i.e., a $12 minimum wage by 2022, elimination of the tipped employee minimum wage (“tip credit”) and a 72-hour mandate that would apply to employers with 50 or more employees and a 40/32 hour paid/unpaid mandate that would apply to employers with less than 10 employees). This action would likely set off a new round of litigation. Similarly, if the Court declines to intervene, a case could begin in another forum, such as the Michigan Court of Claims. Finally, if the Court does rule, and it is an “advisory” opinion, there is a chance this, too, could trigger further litigation.

While there is no indication of when or whether the Court will ultimately rule on the issue or whether they might rule in favor of the Legislature’s actions, we remain hopeful that the Court will resolve this dispute and settle this legal dispute. We will keep you informed as this issue develops. In the meantime, if you have any questions, please contact Wendy Block at wblock@michamber.com