Chamber of Commerce organizations continue their assault on worker’s benefits in court

The Chamber of Commerce organizations lost their battle to overturn Prop. 206, the 2016 minimum wage and paid time off initiative in court, but they are not done using their lickspittle servants in Arizona’s Tea-Publican controlled state legislature to try to reverse citizens initiatives voters approved for paid time off and worker’s benefits.

Howard Fischer reports, State seeks to block cities from regulating private workers ‘benefits’:

Attorney General Mark Brnovich is asking a judge to rule that the word “benefits” in a voter-approved measure is not the same as “fringe benefits.”

And the goal of this judicial war of words is a bid by Brnovich to block local governments from telling private companies what benefits they have to offer their workers.

Assistant Attorney General Rusty Crandell, writing on behalf of Brnovich, is trying to preserve a 2016 measure [HB 2579] adopted by Republican legislators to block local governments from telling private companies everything from how much time off they will offer workers to vacation mandates and even how far ahead of time workers need to be told of schedule changes.

Note: Both the Minimum Wage Act, Prop. 202, approved by voters in 2006, and Prop. 206 approved by voters in 2016, provide for local governments being able to require “benefits” for employees. Prop. 206 was specifically designed to supersede HB 2579 by mandating paid time off benefits.

I explained this lawsuit last year. Arizona sued for unconstitutional attempt to preempt the Arizona Minimum Wage Act.

Crandell specifically wants Maricopa County Superior Court Judge Robert Oberbillig to throw out a challenge to that law by Democrat legislators who voted against it.

But attorney Jim Barton, representing the challengers, said the 2006 voter-approved initiative setting the state’s first-ever minimum wage specifically authorizes such local laws on fringe benefits. And Barton said that was reinforced this past November when voters adopted Proposition 206, which raised the wages again and mandated, for the first time ever, paid sick leave.

Businesses are powerless to block “living wage” legislation like what voters adopted in Flagstaff and what is being considered in other communities. That’s because Prop. 202, the 2006 initiative, specifically allows cities to set wages even higher than what the state requires.

But fearful of even broader local mandates, the restaurant industry last year got Rep. J.D. Mesnard, R-Chandler, to craft a legal end-run of sorts around the initiative.

Specifically, Mesnard wrote a law [HB 2579] that redefines “wages” — the thing the state cannot preempt because it was approved at the ballot — to include only the salaries being paid to workers.

Everything else was defined as “nonwage compensation,” ranging from sick pay, vacation pay and severance benefits to commissions and pension contributions. That also includes things like maternity leave.

In challenging Mesnard’s law last year, Barton pointed out the Arizona Constitution forbids lawmakers from altering voter-approved laws unless the measure “furthers the purpose” of the original law [i.e., the Voter Protection Act].

In this case, he said, the 2006 initiative specifically says a local government “may by ordinance regulate minimum wages and benefits within its geographic boundaries.” That, he said, makes the law [HB 2579] illegal.

And Barton said even if a court were to conclude the Mesnard-crafted law could be interpreted as furthering the purpose of the 2006 initiative, the Arizona Constitution [i.e., the Voter Protection Act] says changes to initiatives require a three-fourths vote of both the House and Senate. Mesnard’s legislation was approved by the House 34-26 margin; the Senate tally was 18-11.

It is that margin that gives Democrat lawmakers who opposed the law — and had enough votes to deny the measure that three-fourths margin — the standing to sue.

In his new court filings, Crandell told Oberbillig all that is irrelevant. And the key to that is the argument that “benefits” doesn’t mean what challengers say it means.

Crandell concedes the wording in the 2006 law — language also picked up in last year’s Prop. 206 initiative — does specifically say local governments can “regulate minimum wages and benefits.”

But Crandell wants the judge to conclude the word “benefits” means not “fringe benefits” but instead only “the minimum wage protections that Prop. 202 provides.”

This interpretation is not at all supported by the unambiguous language of Prop. 202 (2006) or Prop. 206 (2016). Crandell should be embarrassed to even make this argument.

“The term ‘benefits’ is not defined,” Crandell wrote. And while he acknowledges a dictionary says it could be considered shorthand for “fringe benefits,” there’s also a definition that says “the advantage or privilege something gives.”

So if “benefits” does not necessarily mean “fringe benefits,” what does it mean?

Crandell told Oberbillig it’s up to him to discern what voters intended when they approved Prop. 202. But Crandell insisted it definitely does not mean fringe benefits.

He said the measure was titled the “Raise the Minimum Wage for Working Arizonans Act.” And then there was the intent language.

“The declared purpose of Prop. 202 is that ‘all working Arizonans deserve to be paid a minimum wage that is sufficient to give them a fighting chance to provide for their families,”’ Crandell said. He said the initiative accomplishes that by setting the minimum wage and providing for enforcement rights and penalties.

Crandell said there was nothing in any of the arguments in publicity brochures mailed to voters ahead of the 2006 election, either for or against, that mentioned anything other than wages.

“If the voters of Arizona intended to hand over control of all employee benefits to local governments —enabling local governments to saddle businesses with a patchwork of regulations regarding nonwage benefits that vary from one city to the next — one would expect a clear explanation of such a feature in light of its significant impact on business,” Crandell wrote.

“Tellingly, nothing in the history of Prop. 202 alerted voters to this sea change in Arizona employment law.”

This argument is pure bullshit. As I explained in my post about this lawsuit last year:

Proposition 202 also gave local governments the right to enact their own higher minimum wage and other benefits of employment.

A.R.S.§ 23-362, Paragraph I provides:

I. THE LEGISLATURE MAY BY STATUTE RAISE THE MINIMUM WAGE ESTABLISHED UNDER THIS ARTICLE, EXTEND COVERAGE, OR INCREASE PENALTIES. A COUNTY, CITY, OR TOWN MAY BY ORDINANCE REGULATE MINIMUM WAGES AND BENEFITS WITHIN ITS GEOGRAPHIC BOUNDARIES BUT MAY NOT PROVIDE FOR A MINIMUM WAGE LOWER THAN THAT PRESCRIBED IN THIS ARTICLE. STATE AGENCIES, COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THE STATE MAY CONSIDER VIOLATIONS OF THIS ARTICLE IN DETERMINING WHETHER EMPLOYERS MAY RECEIVE OR RENEW PUBLIC CONTRACTS, FINANCIAL ASSISTANCE OR LICENSES. THIS ARTICLE SHALL BE LIBERALLY CONSTRUED IN FAVOR OF ITS PURPOSES AND SHALL NOT LIMIT THE AUTHORITY OF THE LEGISLATURE OR ANY OTHER BODY TO ADOPT ANY LAW OR POLICY THAT REQUIRES PAYMENT OF HIGHER OR SUPPLEMENTAL WAGES OR BENEFITS, OR THAT EXTENDS SUCH PROTECTIONS TO EMPLOYERS OR EMPLOYEES NOT COVERED BY THIS ARTICLE. (emphasis added)

The declared purpose of the law is right there in the statutory language of the Arizona Minimum Wage Act, A.R.S.§ 23-362, Paragraph I, and courts are directed that it is to be “liberally construed,” not narrowly  restricted or limited only to minimum wages as the state is mendaciously arguing. It has been the law for over a decade.

Barton, however, wants Oberbillig to rule it doesn’t take a legal parsing to conclude that “benefits” are what they seem to be, even without the word “fringe” in front of it.

Some of the issue already has been effectively decided.

Last year’s initiative did more than raise the minimum wage to $10 an hour and $12 by 2020.

It also requires employers to provide at least three days of paid leave for everything from sickness to court appearances. It clearly spells out that local governments are free to require paid sick leave greater than what is in the ballot measure.

But there are still other issues that city councils might want to take up, like how much notice private employers must provide before changing a worker’s schedule.

This should be a no-brainer for the trial court, but you can bet that the Chamber of Commerce organizations and their lickspittle servants in our Tea-Publican controlled legislature will pursue this case all the way to the Arizona Supreme Court, and your tax dollars will be paying for their lawsuit to reverse citizens initiatives voters approved for paid time off and worker’s benefits.

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