'Non-Decision' on Paid Sick Leave, Minimum Wage Disappointing

January 6, 2020

Just prior to the holidays, the Michigan Supreme Court announced it will not issue an advisory opinion on the amended versions of the state’s paid sick leave and minimum wage laws. In its 4-3 decision, the Court said the request for an opinion was “DENIED because we are not persuaded that granting the requests would be an appropriate exercise of the Court’s discretion.”

The Court heard oral arguments in July on the constitutionality of the Michigan Chamber-supported changes to the paid sick leave and minimum wage ballot proposals that were made at the end of the 2019 legislative session. Among other things, the Court was asked by the State House and Senate to issue an advisory opinion on the following questions:

  1. Whether the Court should exercise its discretion to grant the Michigan Legislature’s request to issue an advisory opinion in this matter;
  2. 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
  3. 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. 

Although this non-decision means Michigan businesses can continue to comply with these laws as enacted, we are concerned that it could:

  • Result in the Attorney General issuing an opinion finding the law to be unconstitutional and thereby directing state agencies to enforce the original ballot proposal language (i.e., a $12 minimum wage by 2022 and a 72-hour paid sick leave 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 would likely trigger a new round of litigation.
  • Spark a new round of litigation alleging harm in another forum, such as the Michigan Court of Claims. 

The Michigan Chamber issued a press release expressing disappointment in the Court’s decision. Our bottom-line concern is that the Court’s inaction now opens the door to a much longer legal process that is likely to be fraught with unnecessary confusion, cost and political rhetoric. 

We will keep you informed as this issue develops. In the meantime, if you have any questions, contact Wendy Block at wblock@michamber.com.