Did the Idaho AG flag legal problems with the April 11, 2019 minimum wage initiative that would have raised Idaho's minimum wage to $12, raised tipped wages to $8.10, and added CPI indexing?

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 would have amended the Idaho Minimum Wage Law to step the general minimum wage from $7.25 to $12.00 over four years (with CPI indexing thereafter), raise tipped employees' direct wage rate to $8.10, and eliminate the lower minimum wage for newly hired employees under twenty for their first ninety days. This was one of three closely-related minimum wage initiatives Couch filed in March/April 2019; this version did not include language authorizing counties and cities to set higher minimum wages.

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 at $7.25 per hour (the federal floor). The dollar amounts in the proposed schedule (e.g., $8.75 effective June 1, 2021 stepping up to $12.00 effective June 1, 2024) are now historical anchor dates. 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 second of three minimum wage initiatives Rod Couch filed in spring 2019. The first (filed March 11) included a provision authorizing counties and cities to set higher local minimum wages; AG Wasden's certificate on that version (dated April 8, 2019) covered all four substantive components. This second version dropped the local-authorization piece, leaving three substantive changes:

1. Step the general minimum wage to $12 by 2024. $8.75 on June 1, 2021; $9.75 on June 1, 2022; $10.75 on June 1, 2023; $12.00 on June 1, 2024. After that, annual indexing to the federal CPI-W (Urban Wage Earners and Clerical Workers), calculated each September 30 by the Idaho Department of Commerce, taking effect each January 1.

2. Step the tipped employees' direct wage rate to $8.10 by 2024. $4.85 on June 1, 2021; $5.85 in 2022; $6.85 in 2023; $8.10 in 2024. Thereafter the floor would be the minimum wage minus $3.90.

3. Strike the youth subminimum wage. Idaho Code § 44-1502(3) at the time mirrored the FLSA's allowance for an employee under twenty to be paid $4.25 per hour for their first ninety days of employment. The initiative would have eliminated that subprovision entirely, raising those workers to the general minimum.

Legal analysis: clean. AG Wasden concluded all three were proper subjects of state legislation:

• Federal preemption is not an obstacle. The FLSA contains an explicit savings clause at 29 U.S.C. § 218(a) preserving state authority to set higher minimum wages. The Second Circuit in Shahriar v. Smith & Wollensky Rest. Grp. held the savings clause "makes clear that states may enact wage laws that are more protective than those that are provided in the act." 31 states already had higher minimum wages than the FLSA at the time of the certificate.
• Tipped wages: Idaho's existing $3.35 direct wage rate was already higher than the federal $2.13 floor under 29 U.S.C. § 203(m). Raising it to $8.10 is the same exercise.
• Youth subminimum: striking the parallel to 29 U.S.C. § 206(g) is a state-law choice. The state can require more than federal law.

Drafting comments. AG Wasden flagged two trivial format issues:
- A space after "provided" on the first line of proposed § 44-1502(1) should be underlined to show it was being added.
- A space between "wage" and "provided" on the fourth line either needed underlining or, better, replacement with an underlined semicolon and space.

The recommendations were "advisory only."

Common questions

Q: Did this initiative pass?

No. None of the three minimum wage initiatives Rod Couch filed in spring 2019 qualified for the Idaho ballot. As of late 2025, Idaho's minimum wage remains at $7.25 per hour, the same as the federal FLSA floor.

Q: How is this version different from Couch's other 2019 minimum wage initiatives?

There were three. The April 8 version (Certificate 4/8/2019) was the comprehensive package: stepped $12 minimum wage, stepped tipped wage, authorization for counties and cities to set higher local rates, and elimination of the youth subminimum. This April 11 version dropped the local-government authorization (so cities and counties would still be preempted from setting higher minimums). The April 12 version dropped the tipped employees' raise, keeping the local-government authorization and the youth subminimum repeal but leaving the federal-aligned $3.35 tipped direct wage in place.

Q: What is the FLSA "savings clause"?

29 U.S.C. § 218(a). It says: "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]." Translation: the federal minimum is a floor, not a ceiling. States can set higher minimums and the FLSA does not preempt them. Shahriar v. Smith & Wollensky Rest. Grp. and Overnite Transp. Co. v. Tianti are leading cases applying the clause.

Q: How does CPI indexing work?

CPI-W is the Bureau of Labor Statistics' Consumer Price Index for Urban Wage Earners and Clerical Workers, a sub-index of CPI-U. The proposed initiative would have required the Idaho Department of Commerce, on September 30 of each year starting in 2024, to compute the annual change in CPI-W from the prior July 1 to June 30. The minimum wage would adjust upward "in direct proportion to the increase, if any" effective each January 1. There was no automatic decrease if CPI-W fell.

Q: What is a youth subminimum wage?

Federal law allows employers to pay employees under twenty a lower minimum wage (currently $4.25) for the first ninety calendar days of employment. 29 U.S.C. § 206(g). Idaho's parallel provision sat at Idaho Code § 44-1502(3). The initiative would have repealed Idaho's version, leaving the federal one technically still applicable but only to the extent state law permitted (federal floor preempts state-imposed higher floors only one direction). In practice, eliminating the state subminimum would raise under-20 new hires to the general minimum.

Q: What is the tipped employees' "direct wage rate"?

Federal law and Idaho law both allow employers to pay tipped employees a lower direct wage as long as tips bring total compensation up to the regular minimum. Federal law sets the floor at $2.13 per hour. 29 U.S.C. § 203(m); 29 C.F.R. § 531.59. Idaho's direct wage rate at the time was $3.35. The initiative would have raised it to $8.10. After that, the floor would have been "minimum wage minus $3.90."

Background and statutory framework

Idaho Code § 34-1809 requires the AG to review every filed initiative within a tight statutory window and prepare an advisory Certificate of Review. The certificate is advisory only; petitioners can ignore it.

Idaho Code §§ 44-1501 et seq., the Idaho Minimum Wage Law, establishes the state minimum wage and operates in parallel with the federal FLSA. Idaho's statutory minimum is the same as the FLSA floor ($7.25); the tipped direct wage is set higher than the federal floor.

Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq., is the federal floor. Section 218(a) is the savings clause; section 206(g) authorizes the youth subminimum; section 203(m) governs the tipped credit.

Citations

Statutes:
- Idaho Code § 34-1809 (Certificate of Review requirement)
- Idaho Code §§ 44-1501 et seq. (Idaho Minimum Wage Law)
- Idaho Code § 44-1502(1)-(3) (specific minimum wage provisions)
- 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:
- Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234 (2d Cir. 2011) (FLSA savings clause permits state minimums)
- Overnite Transp. Co. v. Tianti, 926 F.2d 220 (2d Cir. 1991) (rejecting argument that FLSA preempts 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_04112019.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORN EY GENERAL
LAWRENC E G. WASD EN

April 11, 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, 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
initiative, petitioners may submit proposed titles for consideration . Any proposed
titles should be consistent with the standard set forth above.

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

Secretary of State Denney
April 11, 2019
Page 2 of 5

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;

(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

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 11, 2019
Page 3 of 5

be less than the minimum wage minus three dollars and ninety cents
($3.90); 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 the 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:

Secretary of State Denney
April 11, 2019
Page 4 of 5

(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 for tipped employees shall not be
less than the minimum wage minus three dollars and ninety cents ($3.90).

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. 2 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. 3
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
2
3

These provisions mirror those of the FLSA. See 29 U.S.C. § 206(g).
See 29 C.F.R. § 531.59.

Secretary of State Denney
April11,2019
Page 5 of 5

greater protections for workers than the FLSA. 4 In fact, currently 31 states have
minimum wage rates that are higher than the FLSA. 5 Thus, the higher wage rates
set by the proposed initiative would be lawful under the FLSA.
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.
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,

LAWRENCE G. WASDEN
Attorney General
Analysis by:

Douglas A. Werth
Deputy Attorney General

4

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):

. . . [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) .
5 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).