The Arizona Attorney General’s Office says a Republican-backed proposal that would allow employers to pay working students well below Arizona’s minimum wage is unconstitutional.
In an email to Greg Jernigan, the general counsel for Senate Republicans, Deputy Solicitor General Rusty Crandell wrote that House Bill 2523 would change a voter-protected minimum wage statute from 2006 and needs at least a three-fourths majority vote in each legislative chamber to pass constitutional muster.
The email was provided to Arizona Mirror through a public records request.
The statement from the AG’s Office is in line with what two nonpartisan staff attorneys in the House and Senate have told lawmakers about HB2523.
“The (Voter Protection Act) prevents the Legislature from amending voter-approved initiatives (either explicitly or implicitly) unless the Legislature’s amendment furthers the purpose of the initiative and is approved by three-fourths of both chambers,” Crandell wrote. “The general conclusion in the Arizona Legislative Council Memorandum dated March 13, 2019 is legally sound: H.B. 2523 is subject to the VPA.”
HB2523, sponsored by Rep. Travis Gratham, R-Gilbert, allows full-time students under 22 who work less than 20 hours per week or for intermittent periods (like summer jobs) to be paid the federal minimum wage of $7.25 an hour. Lawmakers are considering expanding HB2523 so it applies to all those working part-time who are under 22, not just those enrolled full-time at a high school, college or university.
The bill passed the House, was approved in the Senate Commerce Committee. However, it has stalled in the Senate Rules Committee, which has yet to clear it for floor debate and a vote by the full Senate.
A House Rules lawyer told lawmakers earlier this year that a super-majority vote was required for HB2523 to be constitutional. And the top attorney for Legislative Council, the legislature’s division of non-partisan attorneys, wrote in a memo to Sen. Martin Quezada, D-Phoenix, that HB2523 is subject to Prop. 105.
In that memo, Ken Behringer wrote Grantham’s proposal indirectly changes two voter-approved laws: Proposition 202 from 2006 and Proposition 206 from 2016.
Prop. 202 set a minimum wage for Arizona above the federal rate and defined an employee as “any person who is or was employed by an employer.” It makes exceptions for people hired by a parent or sibling, and babysitters who work on a casual basis at their employer’s home.
Prop. 206 said that “employers shall pay employees no less than the minimum wage,” which is currently $11 per hour and will rise to $12 per hour in January.
Grantham’s bill would create a new category of employees – full-time students who are under 22 years old and working part-time – which Behringer said goes against Prop. 202. And it makes those employees subject to a minimum wage below Arizona’s, which is against Prop. 206.
Voter-approved laws are protected from legislative changes, which can only happen if lawmakers have a proposal that both furthers the initiative’s intent and wins a three-fourths majority in each chamber. This is known as a Proposition 105 requirement, a reference to a 1998 constitutional amendment preventing legislative interference with voter-approved measures.
To pass, House Bill 2523 would need a supermajority vote in each chamber, which is highly unlikely due to Democratic lawmakers wide rebuke of the bill.
At a hearing last week, Grantham dismissed staff lawyers’ assessments.
“Lawyers have opinions on every side of the spectrum on every issue,” Grantham said. “I don’t necessarily care what this specific attorney thinks. I value his opinion, but I have a different opinion. There’s other lawyers than have different opinions than he does.”
John Riches, an attorney with the Goldwater Institute, which drafted the legislation, has said Grantham’s proposal doesn’t violate the minimum wage statute because it doesn’t directly change that provision.
However, the Arizona Supreme Court has ruled that lawmakers cannot indirectly undermine voter-approved measures in the same way they can’t directly change such measures.
Here is Crandell’s full message:
It is the opinion of the Arizona Attorney General’s Office that H.B. 2523, as currently proposed, would likely violate the Voter Protection Act (“VPA”) without the concurrence of three-quarters of the Legislature. In 2006, Arizona’s voters passed Prop. 202, which raised the minimum wage above the federal minimum wage level. H.B. 2523 would allow employers to pay the (lower) federal minimum wage, for persons under twenty-two years of age who are employed on a casual basis and enrolled full-time as a student. But the VPA prevents the Legislature from amending voter-approved initiatives (either explicitly or implicitly) unless the Legislature’s amendment furthers the purpose of the initiative and is approved by three-fourths of both chambers. Ariz. Const. art. IV, § 1(6)(C). The general conclusion in the Arizona Legislative Council Memorandum dated March 13, 2019 is legally sound: H.B. 2523 is subject to the VPA.
Rusty D. Crandell
Deputy Solicitor General
Office of the Arizona Attorney General”