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.]




7 comments on “Can lawmakers raise a minimum wage established by a constitutional amendment?

  1. Steve says:

    From the “Believe It Or Not” file.

    On CH8 news at 6 the liberal pundit from SARG spelled out this very constitutional issue saying if the law somehow gets the Governors signature “some one” will file a lawsuit.

    This issue is gaining legs.

  2. Steve says:

    Oops that should be SARJ

  3. SARJ hasn’t broached the subject in print.

    The Nevada Independent finally mentions the constitutional issue, but fails to note the 180 reversal by LCB.

  4. Steve says:

    May have been in that CH8 broadcast. I heard the LCB may be claiming the website had the wrong info posted.
    I don’t have any links to show it but I distinctly remember hearing it or reading somewhere.
    Maybe they are releasing a balloon to see if it stays afloat?

  5. Steve says:

    Check them out.
    The one with the constitutional requirement is “REVISED AUGUST 2015”

    The one without it is “SECOND REVISED AUGUST 2015”

    There are no specific dates with times or other tracking info, even the metadata is not available.
    Strange, for government documents, huh.
    If a bill passes and the governor signs it there will be a lawsuit.

    See the broom and the rug yet?

  6. […] 2006 the minimum wage and how it would be raised was established by Nevada voters through a constitutional amendment. Arguably, it would take another constitutional amendment to change that, not a mere change in […]

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