August 9, 2006, Introduced by Senators EMERSON, SWITALSKI, BRATER, BASHAM, CHERRY, SCHAUER, BARCIA, LELAND, OLSHOVE and THOMAS and referred to the Committee on Government Operations.
A bill to amend 1964 PA 154, entitled
"Minimum wage law of 1964,"
by amending sections 4a and 14 (MCL 408.384a and 408.394), section
4a as amended by 1997 PA 2 and section 14 as amended by 1998 PA 37;
and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 4a. (1) Except as otherwise provided in this section, an
employee shall receive compensation at not less than 1-1/2 times
the regular rate at which the employee is employed for employment
in a workweek in excess of 40 hours.
(2) The
This state or a political subdivision, agency, or
instrumentality
of the this
state does not violate subsection (1)
with respect to the employment of an employee in fire protection
activities or an employee in law enforcement activities, including
security personnel in correctional institutions, if any of the
following applies
apply:
(a) In a work period of 28 consecutive days, the employee
receives for tours of duty, which in the aggregate exceed 216
hours, compensation for those hours in excess of 216 at a rate not
less than 1-1/2 times the regular rate at which the employee is
employed. The employee's regular rate shall be not less than the
statutory minimum hourly rate.
(b) For an employee to whom a work period of at least 7 but
less than 28 days applies, in the employee's work period the
employee receives for tours of duty, which in the aggregate exceed
a
number of hours which that
bears the same ratio to the number
of consecutive days in the employee's work period as 216 bears to
28 days, compensation for those excess hours at a rate not less
than 1-1/2 times the regular rate at which the employee is
employed. The employee's regular rate shall be not less than the
statutory minimum hourly rate.
(c) If an individual who is employed by this state, a political
subdivision of this state, or an interstate governmental agency in
fire protection or law enforcement activities, including activities of
security personnel in correctional institutions, and who, solely at
the individual's option, agrees to be employed on a special detail by
a separate or independent employer in fire protection, law
enforcement, or related activities, the hours the individual was
employed by the separate or independent employer shall be excluded by
the public agency employing the individual in the calculation of the
hours for which the employee is entitled to overtime compensation
under this section if the pubic agency does any of the following:
(i) Requires that its employees engaged in fire protection, law
enforcement, or security activities be hired by a separate and
independent employer to perform the special detail.
(ii) Facilitates the employment of the employees by a separate and
independent employer.
(iii) Otherwise affects the condition of employment of those
employees by a separate and independent employer.
(d) If an employee of this state, a political subdivision of this
state, or an interstate governmental agency undertakes, on an
occasional or sporadic basis and solely at the employee's option,
part-time employment for the public agency which is in a different
capacity from any capacity in which the employee is regularly employed
with the public agency, the hours the employee was employed in
performing the different employment shall be excluded by the public
agency in calculating the hours for which the employee is entitled to
overtime compensation under this section.
(e) (c)
If an employee engaged in fire protection activities
would receive overtime payments under this act solely as a result
of that employee's trading of time with another employee pursuant
to a voluntary trading time arrangement, overtime, if any, shall be
paid to employees who participate in the trading of time as if the
time trade had not occurred. As used in this subdivision, "trading
time arrangement" means a practice under which employees of a fire
department voluntarily substitute for one another to allow an
employee to attend to personal matters, which practice is neither
for the convenience of the employer nor because of the employer's
operations.
(3) The
state or a political subdivision, agency, or
instrumentality
of the state engaged in the operation of An
employer operating a hospital or an establishment that is an
institution primarily engaged in the care of the sick, the aged, or
the mentally ill or defective who reside on the premises does not
violate subsection (1) if both of the following conditions are met:
(a) Pursuant to a written agreement or written employment
policy arrived at between the employer and the employee before
performance of the work or pursuant to a collective bargaining
agreement, a work period of 14 consecutive days is accepted instead
of the workweek of 7 consecutive days for purposes of overtime
computation.
(b) For the employee's employment in excess of 8 hours in a
workday and in excess of 80 hours in the 14-day period, the
employee receives compensation at a rate of 1-1/2 times the regular
rate, which rate shall be not less than the statutory minimum
hourly rate at which the employee is employed.
(4) Subsections (1), (2), and (3) do not apply to any of the
following:
(a) An employee employed in a bona fide executive,
administrative, or professional capacity, including an employee
employed in the capacity of academic administrative personnel or
teacher in an elementary or secondary school. However, an employee
of a retail or service establishment is not excluded from the
definition of employee employed in a bona fide executive or
administrative capacity because of the number of hours in the
employee's workweek which the employee devotes to activities not
directly or closely related to the performance of executive or
administrative activities, if less than 40% of the employee's hours
in the workweek are devoted to those activities.
(b) An individual who holds a public elective office.
(c) A political appointee of a person holding public elective
office or a political appointee of a public body, if the political
appointee described in this subdivision is not covered by a civil
service system.
(d)
An employee employed by an establishment which that is
an amusement or recreational establishment, organized camp, or
religious or nonprofit educational conference center if the
establishment does not operate for more than 7 months in a calendar
year.
(e) An employee employed in agriculture, including farming in
all its branches, which among other things includes: the
cultivation and tillage of the soil; dairying; the production,
cultivation, growing, and harvesting of agricultural or
horticultural commodities; the raising of livestock, bees, fur-
bearing animals, or poultry; and a practice, including forestry or
lumbering operations, performed by a farmer or on a farm as an
incident to or in conjunction with farming operations, including
preparation for market, delivery to storage, or delivery to market
or to a carrier for transportation to market or the processing or
preserving of perishable farm products.
(f) An employee who is not subject to the minimum hourly wage
provisions of this act.
(g) An employee employed under a collective bargaining
agreement that provides either of the following:
(i) That an employee shall not be employed more than 1,040
hours during any 26 consecutive weeks.
(ii) That during a specified consecutive 52-week period an
employee shall not be employed more than 2,240 hours and shall be
guaranteed not less than either 1,840 hours or 46 weeks at the normal
number of hours worked per week, but not less than 30 hours per week,
which guarantee shall not exceed 2,080 hours. The employee shall
receive compensation for all hours guaranteed or worked at rates not
less than those applicable under the agreement covering the work
performed. For all hours in excess of the guaranty which are also in
excess of the maximum workweek applicable to the employee or exceed
2,080, the employee shall receive 1-1/2 times the regular rate at
which he or she is employed.
(h) An employee at a retail or service establishment, if the
regular rate of pay of the employee exceeds 1-1/2 times the minimum
hourly rate applicable under section 4 and more than 1/2 of the
employee's compensation for a representative period of not less than 1
month represents commissions on goods or services.
(i) An employee of an employer engaged in the business of
operating an electric railway, local trolley, or motorbus carrier as
to those hours of employment during which the employee is employed in
charter activities. The exclusion in this subdivision applies only if
the employee's employment in charter activity is pursuant to an
agreement with this employer arrived at before engaging in the charter
employment and the charter activity is not part of the employee's
regular employment.
(j) An employee of a public agency performing court reporting
transcript preparation as to hours worked outside of the hours
regularly required for the employee's attendance. The exclusion in
this subdivision applies only if the employee is paid at a per-page
rate that is either the maximum rate established by state law, local
ordinance, or judicial officer or if the rate is freely negotiated
between the employee and the party requesting the transcript, other
than the presiding judge.
(k) An outside salesperson.
(l) An employee employed in catching, taking, propagating,
harvesting, cultivating, or farming any kind of fish, shellfish, or
other aquatic animal or vegetable and including all of the following
performed by that employee:
(i) The first processing, canning, or packing incident to those
products while at sea.
(ii) Loading or unloading.
(iii) Going to and returning from work.
(m) An employee during the period that the employee receives a
training wage under an exception to the general minimum hourly wage
established in section 4.
(n) An employee employed in connection with the publication of a
weekly, semiweekly, or daily newspaper with a circulation of less than
4,000, the major part of which circulation is within the county of
publication or counties contiguous to it.
(o) A switchboard operator employed by an independently owned
public telephone company with fewer than 750 stations.
(p) An employee employed on a casual basis in domestic service
employment to provide companionship services for aged or infirm
individuals who are unable to care for themselves or an employee under
the age of 18, if he or she is employed in babysitting or similar
domestic services at a private home on an irregular or intermittent
basis and that work does not regularly exceed 20 hours per week in the
aggregate.
(q) A criminal investigator who receives availability pay under 5
USC 5545a.
(r) An employee who is a computer systems analyst, computer
programmer, software engineer, or other similarly skilled worker who
receives compensation at a rate of not less than $27.63 per hour, and
whose primary duty is 1 of the following:
(i) The application of systems analysis techniques and
procedures, including consulting with users, to determine hardware,
software, or system functional specifications.
(ii) The design, development, documentation, analysis, creation,
testing, or modification of computer systems or programs, including
prototypes, based on and related to user or system design
specifications.
(iii) The design, documentation, testing, creation, or modification
of computer programs related to machine operating systems.
(iv) A combination of duties described in subparagraphs (i) to
(iii).
(s) An employee for whom the United States secretary of
transportation has power to establish qualification and maximum hours
of service.
(t) An employee of an employer engaged in the operation of a rail
carrier subject to 49 USC 10101 to 11908.
(u) An employee of a carrier by air subject to the provisions of
45 USC 181 to 188.
(v) An individual employed as an outside buyer of poultry, eggs,
cream, or milk in its raw or natural state.
(w) An employee employed as a seaman.
(x) An employee employed as an announcer, news editor, or chief
engineer by a radio or television station, if the major studio of the
station is located in either of the following:
(i) A city or town of 100,000 or fewer people, except if the city
or town is part of a standard metropolitan statistical area that has a
total population greater than 100,000.
(ii) A city or town of 25,000 or fewer people that is at least 40
miles from the principal city in a standard metropolitan statistical
area.
(y) A salesman, partsman, or mechanic selling or servicing
automobiles, trucks, or farm implements, if employed by a
nonmanufacturing establishment primarily engaged in the business of
selling those vehicles or implements to ultimate purchasers.
(z) A salesman primarily engaged in selling trailers, boats, or
aircraft, if employed by a nonmanufacturing establishment primarily
engaged in the business of selling those items to ultimate purchasers.
(aa) An employee employed as a driver or driver's helper making
local deliveries and compensated for that employment on the basis of
trip rates or another delivery payment plan that the department of
labor and economic growth determines has the general purpose and
effect of reducing hours worked to at or below the maximum workweek
applicable under this act.
(bb) An employee employed in connection with the operation or
maintenance of ditches, canals, reservoirs, or waterways that are
either not operated for profit or operated on a sharecrop basis and
that are used exclusively for supplying or storing water, if at least
90% of the water was delivered for agricultural purposes during the
preceding calendar year.
(cc) An employee who is primarily employed in agriculture by a
farmer, notwithstanding other employment the employee has in
connection with livestock auctions operations in which the farmer
is engaged as an adjunct to raising livestock, either on the
farmer's own account or in conjunction with other farmers, if the
employee is paid an hourly wage rate not less than prescribed in
section 4.
(dd) An employee working in the area of production for an
establishment that is a country elevator, including a country
elevator that sells products and services used in farm operations,
if no more than 5 employees of that establishment are employed in
those operations.
(ee) An employee engaged in transporting or preparing fruits
or vegetables for transport from the farm to a place of first
processing or first marketing.
(ff) A driver employed by an employer engaged in the business
of operating taxicabs.
(gg) An employee who is employed to provide domestic service
other than child care in a household and resides in the household
of the service recipient.
(hh) An employee who, along with his or her spouse, is
employed by a nonprofit educational institution to serve as a
parent to orphans or to children whose parent is deceased or to
children who are enrolled in and reside in residential facilities
of the institution. The exception in this subdivision applies only
if the employee and spouse reside in the institutional facilities,
receive board and lodging without cost, and are compensated on a
cash basis at an annual rate of less than $10,000.00.
(ii) An employee employed by a motion picture theater.
(jj) If the number of employees employed by the employer in
forestry or lumbering operations is 8 or fewer, an employee
employed in planting or tending trees; cruising, surveying, or
felling timber; or preparing or transporting logs or other forestry
products to the mill, processing plant, railroad, or other
transportation terminal.
(kk) An employee engaged in newspaper delivery to the consumer
or a home worker engaged in making wreaths composed primarily of
natural holly, pine, cedar, or other evergreens and including
harvesting the materials for making the wreaths.
(ll) An employee as to those hours in a workweek that services
are performed outside of the United States.
(mm) An employee engaged in processing sugar beets, sugar beet
molasses, or sugar cane into sugar or syrup during a period of not
more than 14 workweeks in any 52 consecutive weeks, if the employee
receives compensation at a rate not less than 1-1/2 times the
regular rate at which he or she is employed for hours exceeding 10
in any workday and for hours exceeding 48 in any workweek.
(5) The requirement in subsection (1) does not apply to the
first 10 hours in excess of 40 hours per week for an employee if
all of the following apply:
(a) The employer is providing remedial education to the
employee that does not include job specific training during those
hours.
(b) The employee lacks a high school diploma or educational
attainment at the eighth grade level.
(6) (5)
The director of the department of consumer
and
industry
services labor and economic
growth shall promulgate rules
pursuant
to under the administrative procedures act of 1969, 1969
PA 306, MCL 24.201 to 24.328, to define the terms used in
subsection
(4) subsections (4) and (5).
(7) (6)
For purposes of administration and enforcement, an
amount owing to an employee that is withheld in violation of this
section is unpaid minimum wages under this act.
(8) (7)
The legislature shall annually appropriate from the
general fund to each political subdivision affected by subsection
(2) an amount equal to the difference in direct labor costs before
and
after January 4, 1979 which
that arises from any change in
existing law resulting from the enactment of subsection (2) and
incurred by each such political subdivision.
(9) (8)
In lieu of monetary overtime compensation, an
employee subject to this act may receive compensatory time off at a
rate of not less than 1-1/2 hours for each hour of employment for
which overtime compensation is required under this act, subject to
all of the following:
(a) The employer allows employees a total of at least 10 days
of leave per year without loss of pay and provides the compensatory
time to the employee only pursuant to either of the following:
(i) Applicable provisions of a collective bargaining agreement,
memorandum of understanding, or any other written agreement between
the employer and representative of the employee.
(ii) If employees are not represented by a collective
bargaining agent or other representative designated by the
employee, a plan adopted by the employer and provided in writing to
its employees that provides employees with a voluntary option to
receive compensatory time off for overtime work when there is an
express, voluntary written request to the employer by an individual
employee for compensatory time off in lieu of overtime pay before
the performance of any overtime assignment.
(b) The employee has not earned compensatory time in excess of
the applicable limit prescribed by subdivision (d).
(c) The employee is not required as a condition of employment
to accept or request compensatory time. An employer shall not
directly or indirectly intimidate, threaten, or coerce or attempt
to intimidate, threaten, or coerce an employee for the purpose of
interfering with the employee's rights under this section to
request or not request compensatory time off in lieu of payment of
overtime compensation for overtime hours, or requiring an employee
to use compensatory time. In assigning overtime hours, an employer
shall not discriminate among employees based upon an employee's
choice to request or not request compensatory time off in lieu of
overtime compensation. An employer who violates this subsection is
subject to a civil fine of not more than $1,000.00.
(d) An employee may not accrue more than a total of 240 hours
of compensatory time. An employer shall do both of the following:
(i) Maintain in an employee's pay record a statement of
compensatory time earned by that employee in the pay period that
the pay record identifies.
(ii) Provide an employee with a record of compensatory time
earned by or paid to the employee in a statement of earnings for
the period in which the compensatory time is earned or paid.
(e) Upon the request of an employee who has earned
compensatory time, the employer shall, within 30 days following the
request, provide monetary compensation for that compensatory time
at a rate not less than the regular rate earned by the employee at
the time the employee performed the overtime work.
(f) An employee who has earned compensatory time authorized
under this subsection shall, upon the voluntary or involuntary
termination of employment or upon expiration of this subsection, be
paid unused compensatory time at a rate of compensation not less
than the regular rate earned by the employee at the time the
employee performed the overtime work. A terminated employee's
receipt of or eligibility to receive monetary compensation for
earned compensatory time shall not be used by either of the
following:
(i) The employer to oppose an employee's application for
unemployment compensation under the Michigan employment security
act, 1936 (Ex Sess) PA 1, MCL 421.1 to 421.75.
(ii) The This
state to deny unemployment compensation
or
diminish an employee's entitlement to unemployment compensation
benefits under the Michigan employment security act, 1936 (Ex Sess)
PA 1, MCL 421.1 to 421.75.
(g) An employee shall be permitted to use any compensatory
time accrued under this subsection for any reason unless use of the
compensatory time for the period requested will unduly disrupt the
operations of the employer.
(h) Unless prohibited by a collective bargaining agreement, an
employer may terminate a compensatory time plan upon not less than
60 days' notice to employees.
(i) As used in this subsection:
(i) "Overtime compensation" means the compensation required
under
this section.
4a.
(ii) "Compensatory time" and "compensatory time off" mean hours
during which an employee is not working and for which the employee
is compensated in accordance with this subsection in lieu of
monetary overtime compensation.
(iii) "Overtime assignment" means an assignment of hours for
which overtime compensation is required under this act.
(10) The amendatory act that added this subsection does not
deprive an employee or any class of employees of any right to
receive overtime compensation or to be paid the minimum hourly wage
that existed before the effective date of that amendatory act.
Sec.
14. (1) This Except
as provided in subsection (2), this
act does not apply to an employer who is subject to the minimum
wage
provisions of the fair labor standards act of 1938, chapter
676,
52 Stat. 1060, 29 U.S.C. 29
USC 201 to 216
and 217 to 219,
unless application of those federal minimum wage provisions would
result in a lower minimum hourly wage than provided in this act.
Additionally,
this
(2) Beginning October 1, 2006, this act's requirements
concerning compensation for employment in a workweek in excess of
40 hours apply to an employer who is subject to the minimum wage
provisions of the fair labor standards act of 1938, 29 USC 201 to
219.
(3) This act does not apply to persons employed in summer
camps
for not more than 4 months , or
to employees with
disabilities who are covered by a blanket deviation certificate or
other
special certificate issued under section 14(c) 14 of
the
fair
labor standards act of 1938, chapter 676, 52 Stat. 1068, 29
U.S.C.
29 USC 214. , or
(4) This act does not apply to agricultural fruit growers,
pickle growers and tomato growers, or other agricultural employers
who traditionally contract for harvesting on a piecework basis, as
to
those employees of such employers used for
such harvesting
until
the board shall have has acquired sufficient
data to
determine
an adequate basis for the establishment of to establish
a
scale of piecework and shall determine such determines a scale
equivalent
to the prevailing minimum wage for
such that
employment. ,
which determination shall occur no later than May 1,
1967.
Such The piece rate scale shall be equivalent to the minimum
hourly
wage in that, when if
the payment by unit of production is
applied to a worker of average ability and diligence in harvesting
a
particular commodity, he or she
shall receive receives an
amount not less than the hourly minimum wage.
Enacting section 1. Section 7a of the minimum wage law of
1964, 1964 PA 154, MCL 408.387a, is repealed.
Enacting section 2. This amendatory act takes effect October
1, 2006.