Did the Idaho AG flag legal problems with the April 8, 2019 minimum wage initiative that would have raised Idaho's minimum wage to $12, raised tipped wages to $8.10, struck the youth subminimum, and authorized counties and cities to set higher local minimums?

Subject

The Idaho AG's advisory Certificate of Review under Idaho Code § 34-1809 of a citizen initiative (filed March 11, 2019 by petitioner Rod Couch) that proposed the broadest of three related minimum wage measures: stepping the general minimum wage from $7.25 to $12.00 over four years (with CPI-W indexing thereafter), stepping tipped employees' direct wage rate to $8.10, expressly authorizing counties and cities to enact higher local minimum wages (and striking the existing pre-emption of local rates), and eliminating the lower minimum wage for new hires under twenty during their first ninety days. None of the three Couch initiatives qualified for the ballot.

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

Of the three closely-related minimum wage initiatives Rod Couch filed in spring 2019, this March 11 version was the comprehensive one: all four substantive components in a single measure. AG Wasden's certificate (dated April 8, 2019) found no fundamental legal obstacle to any of them.

Component 1: Step the general minimum wage to $12 by 2024, then index. 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.

Component 2: Step the tipped direct wage to $8.10 by 2024. $4.85 in 2021, $5.85 in 2022, $6.85 in 2023, $8.10 in 2024. Then floor at minimum wage minus $3.90.

Component 3: Local government authorization. This was the distinguishing feature of the April 8 version. The initiative would have inserted language saying counties and cities "may establish and enforce minimum wage laws higher than the minimum wages provided in [Idaho Code § 44-1502]" and would have struck the existing language preempting political subdivisions from setting higher rates.

Component 4: Strike the youth subminimum. Eliminate Idaho Code § 44-1502(3) entirely, raising under-20 new hires to the general minimum.

Legal analysis.

• Federal preemption. The FLSA's savings clause at 29 U.S.C. § 218(a) preserves state authority to set higher minimums. 31 states already had higher rates. Shahriar v. Smith & Wollensky Rest. Grp.; Overnite Transp. Co. v. Tianti; Ervin v. OS Rest. Servs.
• Home rule for the local-authorization piece. The home rule provision of the Idaho Constitution, art. XII, § 2, grants counties and cities broad police power to enact local police, sanitary, and other regulations "not in conflict ... with the general laws" of the state. The grant is reflected statutorily in Idaho Code §§ 50-301 and 50-302(1). Authorizing cities and counties to set higher minimum wages was within the legislature's power to revise the state-local preemption framework.
• Local ordinance validity test. If the initiative passed and a city or county set a local minimum wage, that ordinance would have to satisfy the State v. Doe / Hobbs v. Abrams three-part test: (1) confined to the territorial limits of the enacting body, (2) not in conflict with the general laws of the State, and (3) not unreasonable or arbitrary. The AG noted this test would apply to ordinances passed under the new authority but did not constrain the authorizing legislation itself.

Drafting issues. AG Wasden flagged three:

(a) The existing text of Idaho Code § 44-1502(2) was not quoted correctly: the proposed strike of "three dollars and thirty five cents ($3.35) an hour" and replacement with ": as of June 1, 2021," was not properly indicated.

(b) The proposed strike of subsection (3) and substitution of new text did not underline the new text to mark it as an addition.

(c) Three minor clerical corrections in subsection (1): underlining a space after "provided," removing a stray opening parenthesis before "seven," and either underlining a space between "wage" and "provided" or replacing 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: What was different about this April 8 version compared to the other two?

This was the most expansive of the three. The April 11 version (Certificate 4/11/2019) dropped only the local-government authorization piece. The April 12 version (Certificate 4/12/2019) dropped the tipped employees' raise. The April 8 version had all four substantive components in a single ballot measure.

Q: Could counties and cities really set their own minimum wages if this passed?

Yes, with limits. The Idaho Constitution at art. XII, § 2 grants cities and counties home-rule authority over local police, sanitary, and other regulations as long as they do not conflict with general state laws. The current state-law preemption of local minimum wages would have been struck and replaced with explicit authorization. Local ordinances would still need to satisfy the State v. Doe / Hobbs v. Abrams test: confined to the enacting body's territorial limits, consistent with state law, and not unreasonable or arbitrary.

Q: What does "preempt" mean for local minimum wage law?

State preemption means the state legislature has occupied the field and forbidden local governments from regulating in that area, or has set a uniform standard that locals cannot exceed. Idaho's existing law preempted political subdivisions from setting their own minimum wages, with "political subdivision" defined broadly at Idaho Code § 6-902 (the Idaho Tort Claims Act definition, covering counties, cities, school districts, irrigation districts, special improvement or taxing districts). The initiative would have lifted that preemption for cities and counties only.

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." The first prong means a city ordinance can only cover conduct within city boundaries. The second prong is the home-rule test for state-law conflict. The third prong is a substantive due process backstop.

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 higher wage floors. Translation: the federal $7.25 minimum is a floor, not a ceiling, and states are free to set higher rates. The Second Circuit in Shahriar v. Smith & Wollensky Rest. Grp. and the Seventh Circuit in Ervin v. OS Rest. Servs. have confirmed this reading.

Background and statutory framework

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

The Idaho home rule provision, Idaho Constitution art. XII, § 2, is what makes the local authorization piece work. Cities and counties have broad police power as long as they do not conflict with general state laws. The legislature controls the boundary of the conflict by deciding what the general laws say.

Idaho Code § 6-902 defines "political subdivision" expansively for purposes of the Idaho Tort Claims Act, and that definition is borrowed into the existing Minimum Wage Law preemption clause. The initiative would have replaced that preemption with affirmative authorization, but only for counties and cities (not other political subdivisions like school districts or special districts).

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(1)-(3)
- 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) (FLSA savings clause)
- Overnite Transp. Co. v. Tianti, 926 F.2d 220 (2d Cir. 1991) (FLSA does not preempt state wage laws)
- Ervin v. OS Rest. Servs., Inc., 632 F.3d 971 (7th Cir. 2011) (same)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2019/11/Certificate_04082019.pdf

Original opinion text

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

April 8, 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 and the Direct Wage Rate for Tipped Employees, 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 filed with your office on March 11, 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
Telephone: (208) 334 -2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 210

Secretary of State Denney
April 8, 2019
Page 2 of 7

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 not in the
proper legislative format for showing amendments to statutory provisions because:
(a)

the existing text of subsection (2) of Idaho Code § 44-1502 is not
quoted correctly: The first sentence of subsection (2) of the statute
states in part: "the direct wages paid to the employee by the
employer shall not be in an amount less than three dollars and thirtyfive cents ($3.35) an hour."; however, the proposed initiative does
not indicate that the initiative would strike the text "three dollars and
thirty five cents ($3.35) an hour" and add the text ": as of June 1,
2021,";

(b)

the proposed initiative would strike in its entirety the existing text of
subsection (3) of Idaho Code § 44-1502 and replace the stricken text
with new text also numbered subsection (3), but the initiative does
not underline the proposed new text to indicate that it is being added
to the statute; and

(c)

the proposed initiative has three (3) minor clerical errors 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; on the third line of proposed
subsection (1) in the initiative, the open parentheses before the word
"seven" is a typographical error and should be removed; and 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

Secretary of State Denney
April 8, 2019
Page 3 of 7

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;

(b)

increasing the minimum amount of direct wages that must be paid to
tipped employees annually for four (4) consecutive years, and
providing further that on January 1 of each year following the fourth
increase, the direct wages to be paid to tipped employees shall not
be three dollars and ninety cents ($3.90) less than minimum wage;

(c)

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

(d)

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;

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 8, 2019
Page 4 of 7

(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.
Increasing the Direct Wage Rate that Employers Must Pay
Tipped Employees. The proposed initiative would increase the minimum amount
of direct wages that employers must pay to tipped employees from the current rate
of three dollars and thirty-five cents ($3.35) an hour set by Idaho Code § 441502(2) to eight dollars and ten cents ($8.10) an hour on June 1, 2024. This
increase would occur over the course of four (4) consecutive years, with increases:

(a)

to four dollars and eighty-five cents ($4.85) per hour on June 1, 2021;

(b)

to five dollars and eighty-five cents ($5.85) per hour on June 1, 2022;

(c)

to six dollars and eighty-five cents ($6.85) per hour on June 1, 2023;
and

(d)

to eight dollars and ten cents ($8.10) per hour on June 1, 2024.

The proposed initiative provides that on January 1, 2025, and each January 1
thereafter, the minimum amount of direct wages shall not be less than the minimum
wage minus three dollars and ninety cents ($3.90).
C.
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 8, 2019
Page 5 of 7

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

D.
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 8, 2019
Page 6 of 7

minimum wage rates that are higher than the FLSA. 6 Thus, the higher minimum
wage rates set by the proposed initiative would be lawful 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 is also 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 8, 2019
Page 7 of 7

CERTIFICATION

I 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 North Maidstone Way,
Boise, Idaho 83713.
Sincerely,

Attorney General
Analysis by:

Douglas A. Werth
Deputy Attorney General