February 24, 2004, Introduced by Rep. Wojno and referred to the Committee on Employment Relations, Training and Safety.
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:
1 Sec. 4a. (1) Except as otherwise provided in this section,
2 an employee shall receive compensation at not less than 1-1/2
3 times the regular rate at which the employee is employed for
4 employment in a workweek in excess of 40 hours. Subject to a
5 collective bargaining agreement, an employer shall not require a
6 nurse to work more than 40 hours in any 7-day work period or more
7 than his or her scheduled shift in any day except in the event of
8 an emergency. This subsection does not prohibit a nurse from
9 voluntarily working more than 40 hours in any 7-day work period
10 or more than his or her scheduled shift in any day. As used in
11 this subsection, "nurse" means a licensed practical nurse or a
1 registered professional nurse licensed to engage in the practice
2 of nursing under part 172 of the public health code, 1978 PA 368,
3 MCL 333.17201 to 333.17242.
4 (2) The This
state or a political subdivision, agency, or
5 instrumentality of the
this state does not violate subsection
6 (1) with respect to the employment of an employee in fire
7 protection activities or an employee in law enforcement
8 activities, including security personnel in correctional
9 institutions, if any of
the following applies apply:
10 (a) In a work period of 28 consecutive days, the employee
11 receives for tours of duty, which in the aggregate exceed 216
12 hours, compensation for those hours in excess of 216 at a rate
13 not less than 1-1/2 times the regular rate at which the employee
14 is employed. The employee's regular rate shall be not less than
15 the statutory minimum hourly rate.
16 (b) For an employee to whom a work period of at least 7 but
17 less than 28 days applies, in the employee's work period the
18 employee receives for tours of duty, which in the aggregate
19 exceed a number of hours which
that bears the same ratio to the
20 number of consecutive days in the employee's work period as 216
21 bears to 28 days, compensation for those excess hours at a rate
22 not less than 1-1/2 times the regular rate at which the employee
23 is employed. The employee's regular rate shall be not less than
24 the statutory minimum hourly rate.
25 (c) If an employee engaged in fire protection activities
26 would receive overtime payments under this act solely as a result
27 of that employee's trading of time with another employee pursuant
1 to a voluntary trading time arrangement, overtime, if any, shall
2 be paid to employees who participate in the trading of time as if
3 the time trade had not occurred. As used in this subdivision,
4 "trading time arrangement" means a practice under which employees
5 of a fire department voluntarily substitute for one another to
6 allow an employee to attend to personal matters, which practice
7 is neither for the convenience of the employer nor because of the
8 employer's operations.
9 (3) The This
state or a political subdivision, agency, or
10 instrumentality of the
this state engaged in the operation of a
11 hospital or an establishment that is an institution primarily
12 engaged in the care of the sick, the aged, or the mentally ill or
13 defective who reside on the premises does not violate subsection
14 (1) if both of the following conditions are met:
15 (a) Pursuant to a written agreement or written employment
16 policy arrived at between the employer and the employee before
17 performance of the work, a work period of 14 consecutive days is
18 accepted instead of the workweek of 7 consecutive days for
19 purposes of overtime computation.
20 (b) For the employee's employment in excess of 8 hours in a
21 workday and in excess of 80 hours in the 14-day period, the
22 employee receives compensation at a rate of 1-1/2 times the
23 regular rate, which rate shall be not less than the statutory
24 minimum hourly rate at which the employee is employed.
25 (4) Subsections (1), (2), and (3) do not apply to any of the
26 following:
27 (a) An employee employed in a bona fide executive,
1 administrative, or professional capacity, including an employee
2 employed in the capacity of academic administrative personnel or
3 teacher in an elementary or secondary school. However, an
4 employee of a retail or service establishment is not excluded
5 from the definition of employee employed in a bona fide executive
6 or administrative capacity because of the number of hours in the
7 employee's workweek which
that the employee devotes to
8 activities not directly or closely related to the performance of
9 executive or administrative activities, if less than 40% of the
10 employee's hours in the workweek are devoted to those
11 activities.
12 (b) An individual who holds a public elective office.
13 (c) A political appointee of a person holding public elective
14 office or a political appointee of a public body, if the
15 political appointee described in this subdivision is not covered
16 by a civil service system.
17 (d) An employee
employed by an establishment which that is
18 an amusement or recreational establishment, if the establishment
19 does not operate for more than 7 months in a calendar year.
20 (e) An employee employed in agriculture, including farming in
21 all its branches, which among other things includes: the
22 cultivation and tillage of the soil; dairying; the production,
23 cultivation, growing, and harvesting of agricultural or
24 horticultural commodities; the raising of livestock, bees,
25 fur-bearing animals, or poultry; and a practice, including
26 forestry or lumbering operations, performed by a farmer or on a
27 farm as an incident to or in conjunction with farming operations,
1 including preparation for market, delivery to storage, or
2 delivery to market or to a carrier for transportation to market
3 or the processing or preserving of perishable farm products.
4 (f) An employee who is not subject to the minimum hourly wage
5 provisions of this act.
6 (5) The director of
the department of consumer and industry
7 services labor and economic growth shall promulgate
rules
8 pursuant to the administrative procedures act of 1969, 1969 PA
9 306, MCL 24.201 to 24.328, to define the terms used in subsection
10 (4).
11 (6) For purposes of administration and enforcement, an amount
12 owing to an employee that is withheld in violation of this
13 section is unpaid minimum wages under this act.
14 (7) The legislature shall annually appropriate from the
15 general fund to each political subdivision affected by subsection
16 (2) an amount equal to the difference in direct labor costs
17 before and after January
4, 1979 which that arises from any
18 change in existing law resulting from the enactment of subsection
19 (2) and incurred by each such political subdivision.
20 (8) In lieu of monetary overtime compensation, an employee
21 subject to this act may receive compensatory time off at a rate
22 of not less than 1-1/2 hours for each hour of employment for
23 which overtime compensation is required under this act, subject
24 to all of the following:
25 (a) The employer allows employees a total of at least 10 days
26 of leave per year without loss of pay and provides the
27 compensatory time to the employee only pursuant to either of the
1 following:
2 (i) Applicable provisions of a collective bargaining
3 agreement, memorandum of understanding, or any other written
4 agreement between the employer and representative of the
5 employee.
6 (ii) If employees are not represented by a collective
7 bargaining agent or other representative designated by the
8 employee, a plan adopted by the employer and provided in writing
9 to its employees that provides employees with a voluntary option
10 to receive compensatory time off for overtime work when there is
11 an express, voluntary written request to the employer by an
12 individual employee for compensatory time off in lieu of overtime
13 pay before the performance of any overtime assignment.
14 (b) The employee has not earned compensatory time in excess
15 of the applicable limit prescribed by subdivision (d).
16 (c) The employee is not required as a condition of employment
17 to accept or request compensatory time. An employer shall not
18 directly or indirectly intimidate, threaten, or coerce or attempt
19 to intimidate, threaten, or coerce an employee for the purpose of
20 interfering with the employee's rights under this section to
21 request or not request compensatory time off in lieu of payment
22 of overtime compensation for overtime hours, or requiring an
23 employee to use compensatory time. In assigning overtime hours,
24 an employer shall not discriminate among employees based upon an
25 employee's choice to request or not request compensatory time off
26 in lieu of overtime compensation. An employer who violates this
27 subsection is subject to a civil fine of not more than
1 $1,000.00.
2 (d) An employee may not accrue more than a total of 240 hours
3 of compensatory time. An employer shall do both of the
4 following:
5 (i) Maintain in an employee's pay record a statement of
6 compensatory time earned by that employee in the pay period that
7 the pay record identifies.
8 (ii) Provide an employee with a record of compensatory time
9 earned by or paid to the employee in a statement of earnings for
10 the period in which the compensatory time is earned or paid.
11 (e) Upon the request of an employee who has earned
12 compensatory time, the employer shall, within 30 days following
13 the request, provide monetary compensation for that compensatory
14 time at a rate not less than the regular rate earned by the
15 employee at the time the employee performed the overtime work.
16 (f) An employee who has earned compensatory time authorized
17 under this subsection shall, upon the voluntary or involuntary
18 termination of employment or upon expiration of this subsection,
19 be paid unused compensatory time at a rate of compensation not
20 less than the regular rate earned by the employee at the time the
21 employee performed the overtime work. A terminated employee's
22 receipt of or eligibility to receive monetary compensation for
23 earned compensatory time shall not be used by either of the
24 following:
25 (i) The employer to oppose an employee's application for
26 unemployment compensation under the Michigan employment security
27 act, 1936 (Ex Sess) PA 1, MCL 421.1 to 421.75.
1 (ii) The state to deny unemployment compensation or diminish
2 an employee's entitlement to unemployment compensation benefits
3 under the Michigan employment security act, 1936 (Ex Sess) PA 1,
4 MCL 421.1 to 421.75.
5 (g) An employee shall be permitted to use any compensatory
6 time accrued under this subsection for any reason unless use of
7 the compensatory time for the period requested will unduly
8 disrupt the operations of the employer.
9 (h) Unless prohibited by a collective bargaining agreement,
10 an employer may terminate a compensatory time plan upon not less
11 than 60 days' notice to employees.
12 (i) As used in this subsection:
13 (i) "Overtime compensation" means the compensation required
14 under this section.
4a.
15 (ii) "Compensatory time" and "compensatory time off" mean
16 hours during which an employee is not working and for which the
17 employee is compensated in accordance with this subsection in
18 lieu of monetary overtime compensation.
19 (iii) "Overtime assignment" means an assignment of hours for
20 which overtime compensation is required under this act.