Bill Text: MI SB1123 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Labor; hours and wages; minimum compensation amounts for exemption from overtime pay; specify for certain employees. Amends sec. 4a of 2014 PA 138 (MCL 408.414a).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-09-26 - Referred To Committee On Commerce [SB1123 Detail]

Download: Michigan-2017-SB1123-Introduced.html

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SENATE BILL No. 1123

 

 

September 26, 2018, Introduced by Senator ANANICH and referred to the Committee on Commerce.

 

 

 

     A bill to amend 2014 PA 138, entitled

 

"Workforce opportunity wage act,"

 

by amending section 4a (MCL 408.414a).

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 4a. (1) Except as otherwise provided in this act, an

 

employee shall must 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) This state or a political subdivision, agency, or

 

instrumentality of this 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 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 must 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 must 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 must 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, if the practice is neither

 

for the convenience of the employer nor because of the employer's

 

operations.

 

     (3) This state or a political subdivision, agency, or

instrumentality of this 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

 

developmentally disabled 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 shall must 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 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. The exemption from

 

payment of overtime compensation under this subdivision does not

 

apply if the employee receives regular rate compensation at less

 

than $913.00 per week.

 

     (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 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: cultivating

 

and tilling soil; dairying; producing, cultivating, growing, and

 

harvesting agricultural or horticultural commodities; raising

 

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 forestry or lumbering operations or

 

preparation for market, delivery to storage, or delivery to market

 

or to a carrier for transportation to market or processing or

 

preserving 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 licensing and regulatory

 

affairs commissioner shall promulgate rules 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 the effective date of this act arising from any change in

 

existing law that results from the enactment of subsection (2) and

 

incurred by the political subdivision.

 

     (8) In lieu of monetary overtime compensation, an employee

 

subject to this act may receive compensatory time off at a rate

 

that is 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 must allow employees a total of at least 10

 

days of leave per year without loss of pay and must provide the

 

compensatory time to the employee 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 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 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, must, upon the voluntary or

 

involuntary termination of employment or upon expiration of if this

 

subsection is no longer in effect, 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 must 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 must be permitted to 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) "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.

 

     (ii) "Overtime assignment" means an assignment of hours for

 

which overtime compensation is required under this act.

 

     (iii) "Overtime compensation" means the compensation required

 

under this section.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.