October 20, 2016, 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 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 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, 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 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 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, 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 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 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.