Supreme Court will not issue advisory on paid leave, minimum wage acts

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by Stephen R. Gee
Clark Hill

On Dec. 18, 2019, the Michigan Supreme Court decided not to issue an advisory opinion on the constitutionality of the Paid Medical Leave Act’s and minimum wage law’s passage in December 2018 (2018 PA 368 & 369). As a result, both laws remain in effect for now. In a 4-3 decision, the Court issued an order stating that it was denying the legislatures’ requests for an advisory opinion on the “adopt and amend” strategy used to pass both laws as it was not an appropriate exercise of the Court’s discretion. Although the 48-page order contained two concurring opinions and two dissenting opinions, the merits were not addressed. As the laws remain in effect for the time being, employers should make sure that they are in compliance, but should also pay close attention to developments because involvement from the Michigan Attorney General Dana Nessel and worker advocacy groups is expected.

Possibilities: Employers should expect one of the two following developments (and possibly even both) to occur in the coming weeks and months: (1) Michigan Attorney General Dana Nessel issuing an Attorney General Opinion finding the “adopt and amend” strategy unconstitutional; and/or (2) worker advocacy groups, like MI Time to Care, announcing that they are initiating ballot petitioning drives to obtain the signatures necessary to place another set of ballot initiatives on the 2020 ballot. The former development is the one that employers should be the most concerned about.

If AG Nessel issues an AG Opinion finding the “adopt and amend” strategy unconstitutional, then the state agencies would be directed to enforce the original 2018 ballot initiative adopted language. (i.e., a $12 minimum wage by 2022 and the Earned Sick Time Act that, among other things, contained a 72-hour paid leave requirement for employers with 50 or more employees). This scenario will likely lead to a number of lawsuits by employers seeking to enjoin the Department of Labor and Economic Opportunity (Governor Whitmer reorganized the state agencies earlier this year by shifting, among other things, wage and hour law compliance to the newly-organized LEO) from enforcing the ESTA and more employee-friendly version of the minimum wage law. Employers’ chances of obtaining a preliminary injunction (i.e., maintain the status quo during the lawsuit) are likely aided by the fact that the PMLA and current minimum wage laws have been in effect for almost 10 months. At this time, we can only speculate on what a court would do.

Worker advocacy groups likely will coordinate their plans with AG Nessel. If the worker advocacy groups pursue 2020 ballot initiative petitions, then there is a chance that AG Nessel will not issue an AG Opinion. Regardless, the 2020 ballot initiative petitions will likely contain the same 2018 initiative language. Worker advocacy groups currently have until May 27, 2020, to file their ballot initiative petitions.

Conclusion: At this point in time employers can continue enforcing PMLA-compliant paid leave policies and are strongly advised to keep an eye out for what AG Nessel and worker advocacy groups decide to do.

Stephen R. Gee is a labor and employment attorney, Clark Hill.


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