Bill Text: MI HB5545 | 2011-2012 | 96th Legislature | Introduced

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Bill Title: Labor; hours and wages; compensatory time in lieu of overtime compensation; modify provisions. Amends sec. 4a of 1964 PA 154 (MCL 408.384a).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2012-04-24 - Printed Bill Filed 04/20/2012 [HB5545 Detail]

Download: Michigan-2011-HB5545-Introduced.html

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HOUSE BILL No. 5545

 

April 19, 2012, Introduced by Rep. McMillin and referred to the Committee on Commerce.

 

     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 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 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 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 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 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 licensing and regulatory affairs 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 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 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

 

employer may terminate a compensatory time plan upon not less than

 

60 days' written 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.