Could Idaho voters raise the state minimum wage to $10 per hour and lower the training-wage age cutoff from 20 to 18, without running into federal preemption?

Plain-English summary

Petitioner Thomas M. Sanner filed an initiative in February 1998 to raise Idaho's minimum wage. The federal minimum wage at the time was $5.15 per hour. The proposed initiative would have made two changes to Idaho Code § 44-1502: (1) added a new clause setting the minimum wage at $10.00 per hour starting December 1, 2000, and (2) modified the introductory training-wage provision so that it applied to workers age 18 or older (instead of 20 or older), and raised the training wage to $7.50 per hour during the first 90 days of employment. The initiative also added safeguards against employers replacing existing workers with new training-wage employees.

The AG found no constitutional or statutory impediment. The federal Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., has a savings clause at 29 U.S.C. § 218 expressly providing that "[n]o provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter." Federal courts have consistently upheld state minimum wages above the federal floor: Pacific Merchant Shipping Ass'n v. Aubry, Baxter v. M.J.B. Investors, and Berry v. KRTV Communications all confirm the framework. Idaho was free to raise its minimum wage to $10 per hour without running into FLSA preemption.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Idaho minimum wage was not raised to $10 by initiative in 1998 or thereafter; Idaho's minimum wage tracks the federal floor as of this opinion's date. The federal FLSA framework and the floor-not-ceiling principle articulated in this certificate remain good law. Anyone advising on current Idaho or federal minimum wage exposure should consult current statutes and rates.

Common questions

Q: How does the FLSA work with state minimum wages?
A: The FLSA sets a floor, not a ceiling. States are free to set higher minimum wages, more generous overtime rules, or more protective workweek limits. Where state law is more protective, state law applies; where federal is more protective, federal applies. The savings clause at 29 U.S.C. § 218 is the textual basis for this rule.

Q: What is a "training wage"?
A: A reduced minimum wage rate that some states allow employers to pay to new workers (typically those entering the workforce or in their first 90 days with an employer). The Idaho training wage in 1998 was applicable to workers under 20; the initiative would have lowered the cap to 18. Critics argue training wages can encourage churn and undercut adult workers; supporters argue they create entry-level opportunities.

Q: Why did the initiative add safeguards against displacing existing workers?
A: A standard concern with subminimum wages is that employers might lay off existing minimum-wage workers and replace them with new training-wage hires. The initiative addressed this by including anti-displacement protections, which is a common drafting element in subminimum-wage statutes.

Q: What was the AG's role?
A: Idaho Code § 34-1809 requires the AG to review every initiative within twenty working days for matters of substantive import. The recommendations are advisory.

Background and statutory framework

The Idaho Minimum Wage Law at Idaho Code §§ 44-1501 et seq. parallels the federal Fair Labor Standards Act. The IMWL covers Idaho employers; the FLSA covers federal, state, and local governments, employers engaged in interstate commerce, and certain other enterprises. There is significant overlap. Where both apply, the more protective standard governs.

The FLSA savings clause at 29 U.S.C. § 218 prevents the FLSA from preempting more generous state or municipal minimum-wage and overtime rules. Federal courts uniformly enforce this floor-not-ceiling principle (Pacific Merchant Shipping; Baxter; Berry).

Citations and references

Statutes: Idaho Code §§ 34-1809, 44-1501 et seq., 44-1502; Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., 218.

Cases: Pacific Merchant Shipping Ass'n v. Aubry, 918 F.2d 1409 (9th Cir. 1990); Baxter v. M.J.B. Investors, 876 P.2d 331 (Or. Ct. App. 1994); Berry v. KRTV Communications, Inc., 865 P.2d 1104 (Mont. 1993).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C022598.pdf

Original opinion text

February 25, 1998
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED

Re: Certificate of Review
Initiative Regarding Minimum Wage Law

Dear Mr. Cenarrusa:

An initiative petition was filed with your office on February 12, 1998. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. It must be stressed that, given the strict statutory timeframe in which this office must respond and the complexity of the legal issues raised in this petition, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part."

BALLOT TITLE

Following the filing of the proposed initiative, our office will prepare short and long ballot titles. The ballot titles should impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure.

MATTERS OF SUBSTANTIVE IMPORT

Idaho Code §§ 44-1501, et seq., is the Idaho Minimum Wage Law ("IMWL"). This law regulates minimum wage and sets standards for hours worked similar to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq. The FLSA applies to employees of federal, state and local governments, employees engaged in or producing goods for interstate commerce, and employees in certain other enterprises. It does not apply to private employers who are not engaged in interstate commerce and who have annual gross sales of less than $500,000.

The initiative would make two changes to the current version of Idaho Code § 44-1502. First, the initiative would add a new clause to Idaho Code § 44-1502(1) that would set the minimum wage at $10.00 per hour, commencing on December 1, 2000. Second, the initiative would change the introductory training wage provision contained in Idaho Code § 44-1502(4) by lowering the age of applicability from twenty (20) to eighteen (18) and raising the minimum training wage to $7.50 per hour during the first ninety days of employment, commencing on December 1, 2000. The initiative would add certain safeguards to section 44-1502(4) to prevent existing employees from being replaced by employees receiving the lower introductory training wage.

Upon review, it is the opinion of this office that there is no constitutional or statutory impediment to the petitioner's proposed changes to the Idaho Minimum Wage Law. Moreover, the FLSA has a specific savings clause that allows states to enact more generous minimum wage laws. 29 U.S.C. § 218 provides in relevant part:

(a) No provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum workweek lower than the maximum.

Thus, Idaho may enact a more generous minimum wage and maximum workweek law that would not be preempted by the FLSA. Pacific Merchant Shipping Ass'n. v. Aubry, 918 F.2d 1409 (9th Cir.), cert. denied 112 S. Ct. 2956, 119 L. Ed. 2d 578 (1990); Baxter v. M.J.B. Investors, 876 P.2d 331 (Ore. Ct. App. 1994); Berry v. KRTV Communications, Inc., 865 P.2d 1104 (Mont. 1993). If enacted, the proposed initiative would not contravene state or federal statutory or constitutional law.

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Thomas M. Sanner by deposit in the U.S. Mail of a copy of this certificate of review.

Sincerely,
ALAN G. LANCE
Attorney General

Analysis by:
MATTHEW J. MCKEOWN
Deputy Attorney General