Did the Idaho AG flag legal problems with the April 12, 2019 minimum wage initiative that would have raised Idaho's minimum wage to $12, authorized counties and cities to set higher local minimums, and struck the youth subminimum (without changing the tipped employees' rate)?

Subject

The Idaho AG's advisory Certificate of Review under Idaho Code § 34-1809 of a citizen initiative (filed March 26, 2019 by petitioner Rod Couch) that proposed stepping the general minimum wage from $7.25 to $12.00 over four years (with CPI-W indexing thereafter), expressly authorizing counties and cities to enact higher local minimum wages (and striking the existing preemption of local rates), and eliminating the lower minimum wage for new hires under twenty during their first ninety days. Unlike Couch's other 2019 minimum wage initiatives, this version did not include a raise for tipped employees' direct wage rate.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. As of late 2025, Idaho's state minimum wage remains $7.25 per hour, and Idaho law continues to preempt local minimum wage ordinances; the proposed authorization for counties and cities to set their own minimum wages did not become law. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

This was the third of three minimum wage initiatives Rod Couch filed in spring 2019. The April 12 version split the difference between the other two: it kept the local-government authorization but dropped the tipped employees' raise. The result was three substantive components:

1. Step the general minimum wage to $12 by 2024. Same schedule as the other Couch versions: $8.75 in 2021, $9.75 in 2022, $10.75 in 2023, $12.00 in 2024. Annual CPI-W indexing thereafter, calculated each September 30, taking effect each January 1.

2. Local government authorization. Insert language saying counties and cities "may establish and enforce minimum wage laws higher than the minimum wages provided in [Idaho Code § 44-1502]"; strike existing language preempting political subdivisions from doing so.

3. Strike the youth subminimum. Eliminate Idaho Code § 44-1502(3) entirely, raising under-20 new hires to the general minimum.

What this version did NOT do: change the tipped employees' direct wage rate. That rate would have remained at the existing $3.35 per hour.

Legal analysis: clean. AG Wasden's analysis was identical to his analysis of the parallel April 8 version's substantive components, minus the tipped-wage piece:

• Federal preemption is not an obstacle. The FLSA's savings clause at 29 U.S.C. § 218(a) preserves state authority to set higher minimums. Shahriar v. Smith & Wollensky Rest. Grp.; Overnite Transp. Co. v. Tianti; Ervin v. OS Rest. Servs.
• Home rule for the local-authorization piece. Idaho Constitution art. XII, § 2 grants counties and cities broad police power as long as ordinances do not conflict with general state laws; statutorily reflected at Idaho Code §§ 50-301 and 50-302(1).
• Local ordinance validity test. Any local minimum wage ordinance enacted under the new authority would have to satisfy the State v. Doe / Hobbs v. Abrams three-part test: confined to territorial limits, not in conflict with general state laws, and not unreasonable or arbitrary.

Drafting comments. AG Wasden flagged the same two trivial format issues he flagged on the April 11 version:

(a) A space after "provided" on the first line of proposed § 44-1502(1) should be underlined.

(b) A space between "wage" and "provided" on the fourth line either needed underlining or, better, replacement with an underlined semicolon.

The recommendations were "advisory only."

Common questions

Q: Did this initiative pass?

No. None of Rod Couch's three 2019 minimum wage initiatives qualified for the Idaho ballot. As of late 2025, Idaho's minimum wage remains at $7.25 per hour, and Idaho continues to preempt local minimum wage ordinances.

Q: Why did Couch file three different minimum wage initiatives in two months?

A common strategy in initiative work is to file multiple variants, see which one tests well in polling and which passes the Certificate of Review without major substantive flags, and then push only the surviving version into signature collection. The April 8 version was the most ambitious (all four components: general wage, tipped wage, local authorization, youth subminimum repeal). The April 11 version dropped local authorization, keeping the tipped wage. The April 12 version kept local authorization but dropped the tipped wage. None made it to the ballot, so the "winnowing" never paid off.

Q: What does the local-government authorization actually do?

It would lift Idaho's preemption of local minimum wage ordinances and replace it with affirmative authorization. Cities and counties (but not other political subdivisions like school districts or special districts) could enact higher local minimum wages. As of 2026, dozens of cities in other states (Seattle, San Francisco, New York, Chicago) have set local minimum wages above their states' floors. This initiative would have opened the door to similar local rates in places like Boise, Coeur d'Alene, or Sun Valley.

Q: Why did this version skip the tipped-wage raise?

The certificate does not say. Most likely, Couch and his co-petitioners wanted to test whether removing the tipped-wage component, which generates concentrated industry opposition (restaurants), would make the package more politically palatable. The fact that none of the three versions qualified suggests the bottleneck was somewhere else (signature gathering, ballot deadline, organizational capacity), not the choice of components.

Q: What is the State v. Doe three-part test for local ordinances?

From State v. Doe, 148 Idaho 919, 927, 231 P.3d 1016, 1024 (2010), citing Hobbs v. Abrams, 104 Idaho 205, 207, 657 P.2d 1073, 1075 (1983): a local ordinance, to be valid, "(1) must be confined to the territorial limits of the enacting body; (2) must not conflict with the general laws of the State; and (3) must not be an unreasonable or arbitrary enactment." A local minimum wage ordinance passed under the new authority would still need to satisfy that test.

Q: What is the FLSA savings clause?

29 U.S.C. § 218(a). The federal Fair Labor Standards Act explicitly preserves state authority to set wage floors above the federal level. The federal $7.25 minimum is a floor, not a ceiling.

Background and statutory framework

Idaho Code § 34-1809 requires the AG to prepare an advisory Certificate of Review on every filed initiative.

Idaho Constitution art. XII, § 2 is the home-rule provision: counties and cities have broad police power to enact local regulations that do not conflict with state law.

Idaho Code § 6-902 defines "political subdivision" broadly for the Idaho Tort Claims Act, and that definition is borrowed into the existing Minimum Wage Law preemption clause that the initiative would have struck.

The FLSA, 29 U.S.C. §§ 201 et seq., sets the federal floor for minimum wages, tipped wages, and youth subminimums. Its § 218(a) savings clause preserves state authority above the floor.

Citations

Statutes and constitutional provisions:
- Idaho Code § 34-1809 (Certificate of Review requirement)
- Idaho Code §§ 44-1501 et seq. (Idaho Minimum Wage Law)
- Idaho Code § 44-1502
- Idaho Code § 6-902 (political subdivision definition)
- Idaho Code § 50-301 (city powers)
- Idaho Code § 50-302(1) (city ordinance authority)
- Idaho Constitution art. XII, § 2 (home rule)
- Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.
- 29 U.S.C. § 206(g) (FLSA youth subminimum)
- 29 U.S.C. § 218(a) (FLSA savings clause)
- 29 C.F.R. § 531.59 (FLSA tipped employees)

Cases:
- State v. Doe, 148 Idaho 919, 231 P.3d 1016 (2010) (three-part test for local ordinance validity)
- Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983) (foundational home rule case)
- Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234 (2d Cir. 2011)
- Overnite Transp. Co. v. Tianti, 926 F.2d 220 (2d Cir. 1991)
- Ervin v. OS Rest. Servs., Inc., 632 F.3d 971 (7th Cir. 2011)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2019/11/Certificate_04122019.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

April 12, 2019

The Honorable Lawerence Denney
Idaho Secretary of State
Statehouse
VIA HAND DELIVERY
RE :

Certificate of Review
Proposed Initiative Amending the Minimum Wage Law, Title 44,
Chapter 15, Idaho Code, to Increase the General Minimum Wage
Rate, to Authorize Counties and Municipalities to Enact Higher
Minimum Wage Rates, and to Strike Provisions that Allow Lower
Minimum Wage Rates for Employees Under Twenty (20) Years of
Age

Dear Secretary of State Denney:
An initiative petition was submitted to your office on March 26, 2019.
Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and
prepared the following advisory comments. Given the strict statutory timeframe
within which this office must review the 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. " The petitioners are free to "accept them in
whole or in part." This office offers no opinion with regard to the policy issues
raised by the proposed initiative or the potential revenue impact to the state budget
from likely litigation over the initiative's validity.
BALLOT TITLE

Following the filing of the proposed initiative, this 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. While our office prepares titles for the

P.O. Box 83720, Boise, Idaho 83720-001 O
Telepho ne: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferso n Street, Suite 21 O

Secretary of State Denney
April 12, 2019
Page 2 of 6

initiative, petitioners may submit proposed titles for consideration. Any proposed
titles should be consistent with the standard set forth above.
MATTER OF FORM

The proposed initiative has only one section. This section is, for the most
part, in the proper legislative format for showing amendments to statutory
provisions. There are two minor corrections that would be appropriate:
(a)

in subsection (1) of Idaho Code § 44-1502, on the first line of
proposed subsection (1) in the initiative, the single space after the
word "provided" should be underlined; and

(b)

in subsection ( 1) of Idaho Code § 44-1502, on the fourth line of
proposed subsection (1) in the initiative, where it reads "wage
provided" the space between the two words should be underlined or,
better yet, an underlined semicolon and underlined space should be
added after the word "wage."

SUMMARY OF INITIATIVE AND MATTERS OF SUBSTANTIVE IMPORT

I.

Summary of Proposed Initiative

The proposed initiative would amend the Minimum Wage Law, Idaho Code
§§ 44-1501, et seq. ("Minimum Wage Law"), by adding and striking language from
Idaho Code § 44-1502 to increase the state's general minimum wage above the
rate established by the federal Fair Labor Standards Act of 1938 ("FLSA"). 1
The significant changes to the statute that would be effected by the
proposed initiative are:
(a)

increasing the minimum wage rate applicable to most non-exempt
employees annually for four (4) consecutive years, and establishing
a formula for subsequent years to annually adjust the minimum wage
rate in direct proportion to any increases in a specified federal
consumer price index;

1 Fair Labor Standards Act of 1938 ("FLSA"), Pub. L. No. 75-718, 52 Stat. 1060, codified
as amended at 29 U.S.C. §§ 201, et seq.

Secretary of State Denney
April 12, 2019
Page 3 of 6

(b)

adding provIsIons authorizing counties and cities to enact laws
setting higher minimum wages than those prescribed by the statute
and striking provisions to the contrary in the statute; and

(c)

striking provisions in the statute setting a lower minimum wage for
persons under twenty (20) years of age for a period of ninety (90)
days after hire.

Each of these changes is discussed more fully below.

A.
Increasing the Minimum Wage Rate. Over a four (4) year period,
the proposed initiative would increase Idaho's minimum wage rate for employees
established by Idaho Code§ 44-1502(1) from its current level of seven dollars and
twenty-five cents ($7.25) an hour to twelve dollars ($12.00) an hour as follows:
(a)

to eight dollars and seventy-five cents ($8.75) per hour on June 1,
2021;

(b)

to nine dollars and seventy-five cents ($9.75) per hour on June 1,
2022;

(c)

to ten dollars and seventy-five cents ($10. 75) per hour on June 1,
2023; and

(d)

to twelve dollars ($12.00) per hour on June 1, 2024.

The proposed initiative also would add language to Idaho Code § 441502( 1) requiring the director of the Department of Commerce on September 30
of each year, beginning in 2024, to calculate an adjusted minimum wage rate "in
direct proportion to the increase, if any" in the United States Department of Labor's
consumer price index for Urban Wage Earners and Clerical Workers (CPI-W) over
the prior year (measured from July 1 to June 30). These adjusted minimum wage
rates would become the minimum wage rate under the Minimum Wage Law
effective on January 1 of the year following each annual calculation.

8.
Expressly Providing that Counties and Cities May Prescribe
Higher Minimum Wages. The proposed initiative states that counties and cities
(municipal corporations) "may establish and enforce minimum wage laws higher
than the minimum wages provided in [Idaho Code§ 44-1502]." At the same time,
the proposed initiative would strike language in the statute that now restricts
counties, cities, and other "political subdivisions" as defined by title 6, chapter 9,

Secretary of State Denney
April 12, 2019
Page 4 of 6

Idaho Code, 2 from passing laws setting minimum wage rates higher than those of
Idaho Code§ 44-1502.

C.
Removing the Minimum Wage Rate Provisions for New
Employees Under Twenty (20) Years of Age. As it reads now, subsection (3) of
Idaho Code § 44-1502, subject to certain restrictions on employers, allows a
minimum wage rate of four dollars and twenty-five cents ($4.25) for employees
under the age of twenty (20) years for a period of ninety (90) days after they are
initially employed. 3 The proposed initiative strikes in its entirety all the language in
this subsection (3), which would increase the minimum wage rate for newly hired
employees under twenty (20) years of age to the general minimum wage rate.
II.

Substantive Analysis

There is little doubt but that the legislature may enact laws that establish
minimum wage rates and tipped employee rates that are higher than the minimum
rates under federal law. Currently, the general minimum wage rate is the same
under the FLSA and the Minimum Wage Law. However, under Idaho Code § 441502(2), the amount of direct wages that employers must pay to tipped employees
is three dollars and thirty-five cents ($3.35) an hour, which exceeds the FLSA's
minimum direct wage rate of two dollars and thirteen cents ($2.13) an hour. 4
A state may have higher minimum wage rates than federal law because the
FLSA does not preempt state law. The FLSA contains a savings clause
specifically authorizing states to set stricter standards: "No provision of [the FLSA]
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 [the FLSA]." 29 U.S.C. § 218(a). As a result, states are
free to adopt and enforce minimum wage rates and overtime rules that afford
greater protections for workers than the FLSA. 5 In fact, currently 31 states have
2

Subsection (2) of Idaho Code § 6-902 defines a "political subdivision" as
... any county, city, municipal corporation, health district, school district, irrigation
district, an operating agent of irrigation districts whose board consists of directors
of its member districts, special improvement or taxing district, or any other political
subdivision or public corporation.
This subsection also provides: "As used in [the Idaho Tort Claims Act], the terms 'county'
and 'city' also mean state licensed hospitals and attached nursing homes established by counties
pursuant to chapter 36, title 31, Idaho Code, or jointly by cities and counties pursuant to chapter
37, title 31, Idaho Code."
3 These provisions mirror those of the FLSA. See 29 U.S.C. § 206(g).
4 See 29 C.F.R. § 531.59.
5 The Second Circuit Court of Appeals reached a similar conclusion in Shahriar v. Smith
& Wollensky Rest. Grp., Inc., 659 F.3d 234 (2d Cir. 2011):

Secretary of State Denney
April 12, 2019
Page 5 of 6

minimum wage rates that are higher than the FLSA. 6 The wage rates set by the
proposed initiative would not be unlawful under the FLSA.
With respect to the provision in the proposed initiative that would authorize
counties and cities to adopt minimum wage rates higher than those set by Idaho
Code § 44-1502, the home rule provision of the Idaho Constitution grants to
counties and cities broad police power, provided the exercise of that local power
is "not in conflict ... with the general laws" of the state.7 Thus, there does not
appear to be anything unlawful about the provision in the proposed initiative
expressly authorizing counties and cities to enact higher minimum wage rates.
If the proposed initiative were to become law, and a county or city was to
enact an ordinance relating to minimum wage rates, such an ordinance, to be
lawful, would need to meet three general restrictions: "(1) it must be confined to
the territorial limits of the enacting body; (2) it must not conflict with the general
laws of the State; and (3) it must not be an unreasonable or arbitrary enactment."
State v. Doe, 148 Idaho 919, 927, 231 P.3d 1016, 1024 (2010); citing Hobbs v.
Abrams, 104 Idaho 205, 207, 657 P.2d 1073, 1075 (1983). This legal standard,
however, does not apply to the text of the proposed initiative.
A similar legal analysis would apply to the remaining provisions of the
proposed initiative. They all appear to be proper subjects of legislation and within
the legislative power of the State of Idaho .

. . . [T]he FLSA's "savings clause" [29 U.S.C. § 218(a)] makes clear that states
may enact wage laws that are more protective than those that are provided in the
act .... We have held that this clause demonstrates Congress' intent to allow state
wage laws to co-exist with the FLSA by permitting explicitly, for example, states to
mandate greater overtime benefits than the FLSA.
Id. at 247-48, citing Overnite Transp. Co. v. Tianti. 926 F.2d 220, 221-22 (2d Cir.1991) (rejecting
the argument that the FLSA preempts state wage laws); and Ervin v. OS Rest. Servs., Inc., 632
F.3d 971, 997 (7th Cir. 2011 )] (same).
6 See U.S. Department of Labor, Wage and Hour Division, Minimum Wage Laws in the
States, March 29, 2019, https://www.dol.gov/whd/minwage/america.htm (April 2, 2019).
7 The home rule provision of the Idaho Constitution, art. XII, sec. 2, states: "Any county or
incorporated city or town may make and enforce, within its limits, all such local police, sanitary and
other regulations as are not in conflict with its charter or with the general laws." The constitutional
grant of these powers to local governments also is reflected in the Idaho Code, See, e.g., I.C. §
50-301 ("Cities governed by this act [may] ... exercise all powers and perform all functions of local
self-government in city affairs as are not specifically prohibited by or in conflict with the general
laws or the constitution of the state of Idaho."); I.C. § 50-302(1) ("Cities shall make all such
ordinances, bylaws, rules, regulations and resolutions not inconsistent with the laws of the state of
Idaho as may be expedient, in addition to the special powers in this act granted, to maintain the
peace, good government and welfare of the corporation and its trade, commerce and industry.").

Secretary of State Denney
April 12, 2019
Page 6 of 6

CERTIFICATION

HEREBY CERTIFY that the enclosed measure has been reviewed for
form, style, and matters of substantive import. The recommendations set forth
above have been communicated to the Petitioner via a copy of this Certificate of
Review, deposited in the U.S. Mail to Rod Couch, 5299 Maidstone Way, Boise,
Idaho 83713.
Sincerely,

LAWRENCE G. WASDEN
Attorney General
Analysis by:

Douglas A. Werth
Deputy Attorney General