Uh-oh. Michigan AG to review Paid Medical Leave Act politicking.

Will the "employer-friendly" Paid Medical Leave Act survive?

This week, Sen. Stephanie Chang (D-Wayne) asked the state Attorney General to review the constitutionality of the process by which the Legislature adopted a paid leave initiative, which got it off the ballot for the November 2018 election, and then enacted a version that was significantly more employer-friendly than the initiative version. 

Attorney General Dana Nessel (D) has agreed to conduct the review.

As I wrote in a recent blog post about the Michigan Paid Medical Leave Act, which is scheduled to take effect on or about March 31 (UPDATE 3/29/19: According to the Detroit News, the Act will take effect today -- March 29 -- unless Attorney General Nessel takes some action to stop it.),

A voter initiative on paid leave, which would have been much more generous for employees, was scheduled to be on the ballot in November 2018. The Republican-controlled legislature approved the proposed legislation in September, which took the matter off the ballot, and then moderated the terms significantly. Among other things, the referendum version would have provided 72 hours of annual paid leave instead of 40 and was not limited to employers with 50 or more employees.

The "amended" version of the law was signed into law by Gov. Rick Snyder (R) in December 2018, just before he left office.

There are two conflicting state Attorney General Opinions regarding whether "adopt and amend" violates the state Constitution. In 1964, Attorney General Frank Kelley (D) said, "[T]he legislature enacting an initiative petition proposal cannot amend the law so enacted at the same legislative session without violation of the spirit and letter of Article II, Sec. 9 of the Michigan Constitution of 1963."

In other words, AG Kelley says that the Legislature could not do what it did with the Paid Medical Leave Act. It could have enacted the proposal as set forth in the voter initiative, or it could have rejected the proposal. It also could have enacted the proposal and amended it during a subsequent legislative session, but not during the same legislative session.

But in an opinion letter dated December 3, 2018, Attorney General Bill Schuette (R) (who had just been defeated in the gubernatorial election) said that the Legislature could adopt an initiative proposal and amend it during the same legislative session. According to AG Schuette, "The language of the Constitution and subsequent decisions by the Michigan courts . . . cast doubt on the validity of [AG Kelley's] conclusion."

I would expect AG Nessel to adopt AG Kelley's view of the matter. But because Republicans still have the majority in both houses of the Legislature, I'm not sure what that would mean as a practical matter. If the entire statute becomes void, do the Republicans even care? They can either let it stay dead, or -- if they want a "moderate" paid leave law -- enact a new statute with exactly the same substance as the void statute. Except that their new Governor is a Democrat, and there may not be enough Republicans to override a veto. Well, anyway, I guess they don't need the Governor to let the paid leave law stay dead.

OR, if because of the Republican legislative majority, the Governor's only choice is between a moderate paid leave law and no paid leave law, would she be inclined to veto the former anyway? Maybe not.

OR, if the enacted law is void, does that throw the original paid leave initiative back to the voters of Michigan? If so, would there be a special election, or would it have to wait for the general election in November 2020?

So many possibilities, and the effective date is only six weeks away! This could get interesting.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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