In 2018, the Michigan legislature adopted, and then within the same legislative session amended, two voter-approved ballot initiatives, one to significantly raised Michigan’s minimum wage and the other to expand employer obligations to provide paid sick leave. In 2022, the Michigan Court of Claims held that the legislature’s actions violated the Michigan Constitution and ordered reinstatement of the ballot initiatives as originally presented.

However, in January 2023, prior to the ordered reinstatement date, the Michigan Court of Appeals reversed that decision, concluding that the legislature did in fact possess such authority. The Michigan Supreme Court has now agreed to hear the matter and decide which version of the law is valid and, in doing so, whether the legislature has the authority under the Michigan Constitution to adopt and amend voter-approved ballot initiatives within the same legislative session. Mothering Justice et al. v. Attorney General and State of Michigan, Appeal No. 165325 (Mich. June 21, 2023).

Background

In the summer of 2018, the Michigan legislature was presented with two ballot initiatives, one to increase the minimum wage and the other to require employers to provide paid sick leave to their employees. Under the Michigan Constitution, as interpreted and applied for many decades prior, the legislature had three options for each initiative:

(1) Reject the initiative, in which case it would be placed on the November 2018 ballot for the voters to either approve or disapprove;

(2) Adopt and enact it without any modifications; or

(3) Propose an alternative, which would then be placed on the ballot alongside the initiative, with the option receiving the most votes becoming law.

Instead, the legislature enacted both initiatives and then immediately amended them, revising key provisions in the process. In so doing, the legislature eliminated the ability of the voters to decide on either the original ballot initiatives or the amended versions passed by the legislature. In July 2022, the Court of Claims held that the legislature’s actions violated the Michigan Constitution. As a result, the court voided the amended laws adopted by the legislature and ordered reinstatement of the ballot initiatives as originally presented. (For further details on the events leading to the Court of Claims decision and the decision itself, see our articles, Michigan Court Voids State’s Minimum Wage and Paid Medical Leave Acts, Creating Compliance Limbo; Order Issuing Changes to Michigan Minimum Wage and Paid Sick Leave Law Stayed Until February 2023; and Michigan Minimum Wage and Paid Leave Update: Agency Guidance and the Mothering Justice Appeal.)

In anticipation of an appeal, the Court of Claims issued a temporary stay of the reinstatement. In January 2023, prior to the expiration of the stay, the Michigan Court of Appeals reversed the decision of the Court of Claims, holding that the legislature was within its authority to amend the 2018 ballot initiatives. (For further details of that decision, see our article, (Mothering) Justice Denied: Legislative Amendments to Minimum Wage and Paid Sick Leave Upheld).

The Michigan Supreme Court has now granted plaintiff Mothering Justice’s application for leave to appeal the decision of the Court of Appeals. The Supreme Court’s grant orders the parties to address (1) whether the legislature violated Article 2, Section 9 of the Michigan Constitution when it enacted the voter initiatives into law and then amended those laws in the same legislative session, and (2) if so, whether the voter initiatives remain in effect. A number of third parties already have filed amicus briefs and the Supreme Court’s order allows for additional parties to request filing of such briefs.

The Takeaway

As long as Michigan employers are in compliance with the current versions of Michigan’s minimum wage laws and Paid Medical Leave Act (PMLA), no further action is required unless and until the Michigan Supreme Court rules otherwise. Thus, for now, the minimum wage remains at $10.10 per hour and the tipped employee minimum wage remains at $3.84 per hour. Similarly, under the current paid sick leave law, employers with more than fifty (50) employees must provide eligible employees with a maximum of 40 hours of paid sick time, with such employees accruing one hour of sick leave for every 35 hours worked.