Editorial: Equal pay bill is a waste of time and money

If you ever seek to land a government contract in Nevada — paving roads, scrubbing floors, selling typing paper — under a proposed law you will be guilty until proven innocent.

Assembly Bill 106, being sponsored by Democratic Assemblywoman Ellen Spiegel of Henderson, would prohibit government agencies in the state from contracting with any firm until it has received a “certificate of pay equity compliance” issued by the state Labor Commissioner declaring the company provides equal pay for equal work performed by men and women employees.

Never mind the fact the federal Equal Pay Act of 1963 already proscribes pay discrimination based on gender.

The bill appears to be a sop to that widely touted canard that women doing the same work as men get paid less than 80 percent as much as their male co-workers.

The bill would create a mountain of paperwork because it requires submitting to the Labor Commissioner an annual workforce analysis that includes: the total number of persons employed in each job category by gender, the total number of hours worked for each employee and the total compensation for each.

Compliance will be costly and time consuming, driving up the cost of doing business, which will be passed along to taxpayers who cover the cost of government contracts.

AB106 would allow differences in pay for men and women if the employer can prove any pay differential is based legitimately on a seniority or merit system, is based on quality or quantity of production or some unspecified differential based on factors other than gender.

Of course, all these exemptions are entirely subjective and subject to the whim of the bureaucrat looking at the data. One person’s meritorious job performance is another’s discrimination.

Also, the bill states, “The denial or cancellation (of a certificate of compliance) is not subject to judicial review.” Satisfy the inspector or no government contract. Sounds like an invitation to pass envelopes of cash under the table.

Further, the bill also requires all governmental agencies and political subdivisions of government to obtain a certificate of compliance, thus again driving up the cost to all taxpayers for compliance

A study by the National Bureau of Economic Research in 2005 exploded the unequal gender pay myth. It concluded that “the gender gap is attributable to choices made by women concerning the amount of time and energy to devote to a career as reflected in years of work experience, utilization of part-time work, and workplace and job characteristics. There is no gender gap in wages among men and women with similar family roles. Comparing the wage gap between women and men ages 35-43 who have never married and never had a child, we find a small observed gap in favor of women, which becomes insignificant after accounting for differences in skills and job and workplace characteristics. What the average woman sacrifices in earnings from choosing jobs that allow for part-time work and flexible work conditions is presumably offset by a gain in the utility of time spent with children and family.”

We wonder if one way to comply with AB106 is to employ a workforce that consists of only men or women — instant compliance, no pay differential. Or is that discriminatory?

AB106 is an expensive and superfluous boondoggle and should be rejected by lawmakers or vetoed by the governor.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Rick McKee cartoon

Rick McKee cartoon

Newspaper column: Proposed environmental bills would kill jobs

Workers frack a well in North Dakota. (Reuters photo via R-J)

Workers frack a well in North Dakota. (Reuters photo via R-J)

With delusions of saving the planet from catastrophic warming, a Las Vegas assemblyman is offering up a futile gesture in the form of a bill to ban fracking in Nevada.

According to media accounts Democratic Assemblyman Justin Watkins has stated fracking causes earthquakes, contaminates water, pollutes the air and basically creates an eyesore.

His Assembly Bill 159 would amend state law by adding: “A person shall not engage in hydraulic fracturing in this State. As used in this section, ‘hydraulic fracturing’ means the process of pumping fluid into or under the surface of the ground to create fractures in the rock to facilitate the production or recovery of oil or gas.”

First, any earthquakes associated with fracking were not caused by fracking but by pumping fracking waste into injection wells, because the environmentalists object to leaving what is mostly water and sand on the surface.

As for contaminating groundwater even Obama’s EPA had to stretch beyond credulity to conclude there is a “chance” of pollution. In its report on the topic the EPA scientists said fracking “can impact drinking water resources under some circumstances,” but “the scientific evidence is insufficient to support estimates of the frequency of contamination.” They said the instances of contamination were small in comparison to the vast number of fracked wells across the nation. Almost nonexistent is more accurate.

Oil and natural gas wells, with or without fracking, produce oil and gas, the burning of which releases some carbon. We grant that, but fracking has actually cut the nation’s carbon output since natural gas burns cleaner than coal when used in power generation.

As for being an eyesore, modern fracking and drilling techniques eliminate the need to drill hundreds of wells in close proximity to hit small pockets of oil, such as can be seen in Bakersfield, Calif. Instead these pockets are tapped by drilling one well and then drilling out horizontally.

It would appear Watkins is under the misconception that fracking is some sort of recent untested endeavor.

The first fracking patent was issued in 1866. It used nitroglycerin explosions to fracture formations. The first commercial application of hydraulic fracking took place in 1949. In many oil and gas fields a vast majority of wells are fracked at one time or another, either initially or later to prolong the productive life of the well.

In the 1980s Texas oilman George Mitchell combined the techniques of fracking and horizontal drilling to develop the Barnett Shale formation in North Texas. This has resulted in a boom in natural gas production and a decline in oil prices, creating countless jobs and growing the economy.

In 2014 the Nevada Division of Minerals Administrator Rich Perry released Nevada’s 20-page revised rules on fracking that require groundwater testing before and after drilling, pressure testing of equipment, notifications to landowners before fracking begins and abiding by strict engineering standards. More than adequate precautions.

Though there have been a few fracked wells in the Elko vicinity in recent years, there reportedly are none ongoing at this time in Nevada.

But there is potential with the Chainman Shale formation, which lies largely in an 80- to 100-mile-plus radius around Duckwater — including almost all of White Pine County, major portions of Nye, Lincoln, Elko, Eureka and Lander counties, as well as parts of a couple of counties in Utah.

The formation is believed to be rich in oil, though most lies 2 to 5 miles underground, making drilling expensive when oil prices are fairly low — largely due to ample supplies created by fracking.

A fracking ban just might kill a number of potential jobs in Nevada and deprive the state economy and the state tax coffers of revenue. All for no discernible reason.

As if the fracking ban were not enough, another Las Vegas Assemblyman — Chris Brooks, who has worked in the solar panel installation business for years — has introduced legislation that would greatly increase the percentage of electric power sold in the state that must be generated by renewable energy sources — known as the renewable portfolio standard (RPS).

Current law requires 25 percent renewable energy by 2025, but Assembly Bill 206 would increase this to 50 percent by 2030 and fully 80 percent by 2040.

Such a standard would drive up power costs, kill jobs and increase the risk of brownouts and blackouts resulting from intermittent generation when the sun doesn’t shine and the wind doesn’t blow — all for the sake of some nebulous superstition that reducing carbon output will save the planet from catastrophic warming.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Pipeline protesters show their respect for the environment

Protesters trying to block the Dakota Access pipeline from being placed under a river because it might, maybe, somehow, someday pollute the water already were leaving behind tons of trash, debris and human waste in the river watershed prior to the spring thaw, but, just to add insanity to pollution, they set 20 fires in their camp today, their deadline for evacuation.

Twenty protesters were arrested and two children were treated for burns due to the fires.

The Army Corps of Engineers is cleaning up the site.

Fires set at protest site. (Getty Image via USA Today)

Fires set at protest site. (Getty Image via USA Today)

 

 

 

 

Minimum wage: The 3 percent solution?

There for a while I felt like Jeremiah crying in the wilderness in pointing out that the state Legislature could not raise the minimum wage in Nevada, because the voters in 2006 set the minimum wage and determined how it would be raised by voting for a constitutional amendment. It would take another constitutional amendment to change that, not a mere change in law.

Senate Bill 106 and Assembly Bill 175 propose to raise the minimum by different amounts.

But this week a writer at The Nevada Independent weighed in with a piece asking: “Can the Nevada Legislature raise the minimum wage?”

The writer concluded that at the Legislative Counsel Bureau opinion that lawmakers can do it is not binding law and if it passes someone is likely to file suit.

Today a Las Vegas newspaper columnist also broached the question of whether the Constitution bars lawmakers from raising the minimum wage.

He too concluded that, if either bill passes and the governor for some reason signs it, the issue will land in the courts.

In 2006 the constitutional amendment established the minimum wage would be $5.15 an hour if an employer provided health insurance and $6.15 if not. It provided for raising that minimum wage to match any increase in the federal minimum or raise it to account for an increase in the cost of living, whichever is greater. Today the minimums stand at $7.25 and $8.25.

The voters established both the minimum wage and the method for increasing it. How can lawmakers simply say that is merely the minimum minimum and they can increase it to whatever level they wish?

The Senate bill would raise the minimum wage 75 cents a year until it reaches $11 or $12, depending on health insurance, while the Assembly version would raise it $1.25 a year until it hits $14 or $15.

An Assembly committee was told by its LCB lawyer last week: “I spoke with the Legislative Counsel Brenda Erdoes. She told me that our office thoroughly researched this during the 2015 legislative session and then updated and confirmed that research during the drafting of AB175 this session. She said that as result of their research it is the opinion of LCB legal, based on the rules of statutory and constitutional construction, that the provisions of the minimum wage amendment to the Nevada Constitution do not limit the inherent power of the Legislature to establish by statute a new minimum wage that is higher than the minimum wage that is currently required by law.”

A Senate LCB lawyer told a committee hearing its bill this week: “In this case with this bill the constitutional amendment clearly states the employers must pay a wage of quote ‘at least’ the amounts set forth in the language of the constitutional amendment. Thus increasing the minimum wage by legislation would not conflict with the constitutional amendment and because there is no conflict with the constitutional amendment the Legislature has the power to enact legislation to increase the minimum wage. And that has been the opinion of the Legislative Counsel.”

But a previous fact sheet posted by LCB in 2015 stated: “Because provisions governing the minimum wage rate are included in the Constitution, any changes to the minimum wage provisions require a constitutional amendment.”

The Las Vegas columnist was told that was an error. The fact sheet has since been altered to delete that section.

But as the Nevada Supreme Court has stated: The expression of one thing is the exclusion of another.

The constitutional amendment states how the minimum wage is to be raised and that does not include permission for the lawmakers raise it by some other means.

In fact, in the portion of the amendment that states how minimum wages may be raised to account for increases in the Consumer Price Index it clearly states: “No CPI adjustment for any one-year period may be greater than 3%.”

That indicates the voters intended to prevent rapid increases in the minimum wage even if the CPI were to jump, say 10 percent in one year.

The proffered $1.25 and 75 cents a year both exceed that 3 percent cap established by the voters. One more argument for the courts to contemplate should either bill become law.

 

 

President signs orders telling officials to enforce immigration laws

Why is it necessary for a president to issue an executive order telling public officials to enforce the laws passed by Congress?

That’s apparently what it has come to. According to The Wall Street Journal, Trump has signed orders that mean almost everybody living in the U.S. illegally is subject to deportation and new arrivals will no longer be subject to the current catch and release practice.

“The Department no longer will exempt classes or categories of removable aliens from potential enforcement,” WSJ quotes an enforcement memo as saying. “Department personnel have full authority to arrest or apprehend an alien whom an immigration officer has probable cause to believe is in violation of the immigration laws.”

The New York Times reports that the orders end the Obama administration policy that required Border Patrol and Immigration and Customs Enforcement agents to immediately deport only those newly arriving illegal immigrants who were apprehended within 100 miles of the border and had been in the country no more than 14 days. “Now it will include those who have been in the country for up to two years, and located anywhere in the nation,” NYT relates.

The orders also tell the federal immigration agencies to revive a program that used local police to help with immigration enforcement, a program called 287g that was scaled down under Obama, NYT says.

According to Channel 3, the 287g program under Sheriff Doug Gillespie only turned over to immigration those suspects that had an outstanding warrant or an immigration detainer.

But it would be up to current Sheriff Joe Lombardo to determine the level of cooperation.

Border wall in Nogales, Ariz. (Reuters pix via WSJ)

Border wall in Nogales, Ariz. (Reuters pix via WSJ)

Can lawmakers raise a minimum wage established by a constitutional amendment?

Senate committee discusses bill to raise minimum wage in Nevada. (KOLO photo)

Senate committee discusses bill to raise minimum wage in Nevada. (KOLO photo)

Brian Fernley of the Legislative Counsel Bureau told the Senate’s Commerce, Labor and Energy Committee, which was hearing testimony on Senate Bill 106 this morning, that lawmakers could raise the minimum wage in Nevada even though the current minimum wage was established by constitutional amendment by the voters in 2004 and 2006.

His comments came after a Bonnie McDaniel, a small business owner, testified in Las Vegas that in 2015 the LCB had opined that the minimum wage could only be raised by amending the state Constitution. (Her testimony comes at two hours and eight minutes into the archived video. Click on the 2017 Session, then click Senate Standing Committees and then on 02/20/17 Senate Committee on Commerce, Labor and Energy video.)

She read the the entire section of the 2015 LCB fact sheet that began: “Because provisions governing the minimum wage rate are included in the Constitution, any changes to the minimum wage provisions require a constitutional amendment,” but for a while had disappeared from the legislative website but was reproduced on this blog.

She also read the entire quotes posted here from a 2014 Supreme Court ruling that said the state legislature “has not the power to enact any law conflicting” with the state Constitution.

She used the phrases from the blog noting that the current LCB opinion is “diametrically opposite” of the opinion from two years ago, even though one of the LCB staff lawyers had told an Assembly committee hearing another minimum wage hike bill that the current opinion merely “updated and confirmed” its earlier opinion.

This morning Fernely told lawmakers:

“The Legislative Counsel has reviewed the provisions of this bill and the cases decided by the Supreme Court addressing the Nevada Constitution’s minimum wage amendment. It is a well established rule of state constitutional construction that the power of the Legislature to enact laws is extremely broad except where limited by the U.S. Constitution or the Nevada Constitution.

“In addition, any limitation on the Legislature’s power in the Nevada Constitution is to be strictly construed and the provisions of the Nevada Constitution must not be interpreted to inhibit the power of the Legislature unless the provision of the Constitution clearly prohibits the Legislature from acting.

“In case interpreting the minimum wage amendment the Nevada Supreme Court has held that only statutes that conflict with the constitutional amendment are prohibited by the amendment. In the Thomas versus Yellow Cab case the Supreme Court held there was an actual conflict between the constitutional amendment because the statute exempted certain employees from the minimum wage requirement but constitutional amendment did not contain such an exemption.

“In this case with this bill the constitutional amendment clearly states the employers must pay a wage of quote at least the amounts set forth in the language of the constitutional amendment. Thus increasing the minimum wage by legislation would not conflict with the constitutional amendment and because there is no conflict with the constitutional amendment the Legislature has the power to enact legislation to increase the minimum wage. And that has been the opinion of the Legislative Counsel.”

First, the phrase “at least,” which Fernley indicated he was quoting, appears nowhere in the minimum wage amendment.

Second, that may now be the LCB opinion but it has not always been as such.

The amendment does state, “Each employer shall pay a wage to each employee of not less than the hourly rates set forth in this section,” which one might interpret as defining what a minimum wage is. It then goes on to state the minimum wage is to be the same as the federal minimum wage for those employers offering health insurance and a dollar higher for those who don’t, but that wage could be adjusted for inflation, whichever is greater.

So, the question is whether the lawmakers can set a “minimum wage” that is different from what the voters established.

The amendment does say the employee is to be paid “not less than the hourly rates set forth,” but it then goes to set forth what that floor is. Does the amendment establish both a floor and a ceiling? Does the phase “not less than” open the door for lawmakers ratchet up the minimum to whatever they choose?

That Thomas v. Yellow Cab case cited by Fernley also includes a Latin phrase used in the law: expressio unius est exclusio alterius, which means the expression of one thing is the exclusion of another.

Therefore, one should ask: Does the precise expression of what the minimum wage shall be in the constitutional amendment exclude the lawmakers from defining it as something else entirely?

I guess it depends on who you ask and when you ask it.

This is the minimum wage amendment:

Payment of minimum compensation to employees.

A.  Each employer shall pay a wage to each employee of not less than the hourly rates set forth in this section. The rate shall be five dollars and fifteen cents ($5.15) per hour worked, if the employer provides health benefits as described herein, or six dollars and fifteen cents ($6.15) per hour if the employer does not provide such benefits. Offering health benefits within the meaning of this section shall consist of making health insurance available to the employee for the employee and the employee’s dependents at a total cost to the employee for premiums of not more than 10 percent of the employee’s gross taxable income from the employer. These rates of wages shall be adjusted by the amount of increases in the federal minimum wage over $5.15 per hour, or, if greater, by the cumulative increase in the cost of living. The cost of living increase shall be measured by the percentage increase as of December 31 in any year over the level as of December 31, 2004 of the Consumer Price Index (All Urban Consumers, U.S. City Average) as published by the Bureau of Labor Statistics, U.S. Department of Labor or the successor index or federal agency. No CPI adjustment for any one-year period may be greater than 3%. The Governor or the State agency designated by the Governor shall publish a bulletin by April 1 of each year announcing the adjusted rates, which shall take effect the following July 1. Such bulletin will be made available to all employers and to any other person who has filed with the Governor or the designated agency a request to receive such notice but lack of notice shall not excuse noncompliance with this section. An employer shall provide written notification of the rate adjustments to each of its employees and make the necessary payroll adjustments by July 1 following the publication of the bulletin. Tips or gratuities received by employees shall not be credited as being any part of or offset against the wage rates required by this section.

B.  The provisions of this section may not be waived by agreement between an individual employee and an employer. All of the provisions of this section, or any part hereof, may be waived in a bona fide collective bargaining agreement, but only if the waiver is explicitly set forth in such agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute, or be permitted, as a waiver of all or any part of the provisions of this section. An employer shall not discharge, reduce the compensation of or otherwise discriminate against any employee for using any civil remedies to enforce this section or otherwise asserting his or her rights under this section. An employee claiming violation of this section may bring an action against his or her employer in the courts of this State to enforce the provisions of this section and shall be entitled to all remedies available under the law or in equity appropriate to remedy any violation of this section, including but not limited to back pay, damages, reinstatement or injunctive relief. An employee who prevails in any action to enforce this section shall be awarded his or her reasonable attorney’s fees and costs.

C.  As used in this section, “employee” means any person who is employed by an employer as defined herein but does not include an employee who is under eighteen (18) years of age, employed by a nonprofit organization for after school or summer employment or as a trainee for a period not longer than ninety (90) days. “Employer” means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts of employment.

D.  If any provision of this section is declared illegal, invalid or inoperative, in whole or in part, by the final decision of any court of competent jurisdiction, the remaining provisions and all portions not declared illegal, invalid or inoperative shall remain in full force or effect, and no such determination shall invalidate the remaining sections or portions of the sections of this section.

[Added in 2006. Proposed by initiative petition and approved and ratified by the people at the 2004 and 2006 General Elections.]