April 12, 2005, Introduced by Senator BASHAM and referred to the Committee on Commerce and Labor.
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 state or a political subdivision, agency, or
instrumentality of the 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:
(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 under
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 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 Under 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 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 compensated on a salary basis at a rate of not
less than $455.00 per week and 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
under 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 under 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 in 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 shall 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 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 may 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 section.