March 16, 2006, Introduced by Reps. Drolet, Gosselin, Taub, Baxter, Ball and Vander Veen and referred to the Committee on Employment Relations, Training, and Safety.
A bill to amend 1964 PA 154, entitled
"Minimum wage law of 1964,"
by amending section 4a (MCL 408.384a), as amended by 1997 PA 2.
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 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 This state or a political subdivision, agency, or
instrumentality
of the this state engaged in the operation of 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, 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 is 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 that 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, 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.
(5)
The director of the department of consumer and industry
services labor
and economic growth shall promulgate
rules pursuant
to the administrative procedures act of 1969, 1969 PA 306, MCL
24.201 to 24.328, to define the terms used in subsection (4).
(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.
(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.
(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
An express, voluntary written request to the
employer by an
individual
employee for agreement between the individual employee
and the employer to provide 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 or to execute any agreement
pertaining to 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 all accrued
compensatory
time at a rate not less than the regular rate earned
by
the employee the employee's rate of pay at the time the
employee
performed the uncompensated 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 the
employee's rate of
compensation
not less than the regular rate earned by the employee
at
the time the employee performed the uncompensated 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 if use
of
the compensatory time for the period requested will does not
unduly disrupt the operations of the employer. If use of
compensatory time does unduly disrupt the operations of the
employer and is denied, the employee is entitled to receive
monetary compensation in lieu of compensatory time off.
(h)
Unless prohibited by a collective bargaining agreement,
an
all of the following apply to compensatory time under this
subsection:
(i) An employer may terminate a compensatory time plan upon not
less than 60 days' written notice to employees.
(ii) If an employer grants an employee's request for
compensatory time off, the compensatory time shall be granted in
the order in which it was accrued.
(iii) If an employee requests monetary compensation for accrued
compensatory time, the monetary compensation shall be calculated
based on the order in which the compensatory time was accrued.
(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.