What did the Idaho Attorney General say about the 2021 ballot initiative that would have raised Idaho's minimum wage to $14 per hour?

Plain-English summary

Under Idaho Code section 34-1809, the Attorney General reviews every proposed ballot initiative for legality and form before it goes to signature collection. The petitioner files the initiative with the Secretary of State, the AG issues an advisory Certificate of Review (which the petitioner can accept in whole, in part, or not at all), and then the initiative moves forward.

In May 2021, an initiative was filed to amend Idaho's Minimum Wage Law (Idaho Code Title 44, Chapter 15). The proposed changes:

1. Raise the general minimum wage from $7.25 to $14 per hour over four years (to $9.50 on July 1, 2023; $11.00 in 2024; $12.50 in 2025; $14.00 in 2026), then automatically increase each year using a federal cost-of-living index starting July 1, 2027.
2. Raise the direct minimum wage for tipped employees from $3.35 to $10.00 per hour over the same four-year ramp.
3. Eliminate the lower $4.25 wage allowed for new employees under 20 during their first 90 days.
4. Reverse Idaho's preemption of local minimum wage ordinances and authorize counties and cities to set higher local minimum wages.

The AG concluded the initiative was substantively lawful. The federal Fair Labor Standards Act doesn't preempt state minimum wage laws because of its savings clause (29 U.S.C. section 218(a)). Thirty states already had minimums above the FLSA's $7.25, so Idaho could too. Letting cities and counties set higher local minimums fits within their police power under Idaho Constitution article XII, section 2, because once the state law expressly authorizes the local action, there's no conflict with "general laws."

The AG flagged some technical issues: two formatting errors in the initiative's amendments to Idaho Code section 44-1502 (one missed underline, one omitted "not"); one substantive concern that the post-2027 cost-of-living formula didn't designate any state agency to perform the calculation and announce the new rate; and minor drafting suggestions including gender-neutral pronouns. The AG offered no opinion on whether higher minimum wages were good policy or what the budget impact might be.

The certificate is advisory. The petitioner is free to "accept [the recommendations] in whole or in part."

What this means for you

Idaho voters

The AG addressed only the legality and form of the initiative, expressly offering no opinion on whether a higher minimum wage was good policy or on the potential budget impact of litigation over the measure's validity. The certificate concluded the amendments did "not appear to be unlawful under either State or Federal law," while flagging form and drafting issues.

Idaho employers

The certificate described what the initiative would have done: raise the general minimum wage in steps to $14.00 by July 1, 2026 with cost-of-living adjustments after, raise the tipped-employee direct wage to $10.00 over the same ramp, remove the $4.25 youth wage for new employees under 20, and let counties and cities set higher local minimums. The AG took no position on the economic effects, and this initiative did not become law.

City and county officials

Under existing Idaho Code section 44-1502(4), political subdivisions may not set minimum wages higher than the state rate. The certificate explained that the initiative would have struck that bar and expressly authorized counties and municipal corporations to set higher local minimums. The AG said that would fit within local police power under Idaho Constitution article XII, section 2, because the amended general law would authorize it, so there would be no conflict with the general laws.

Initiative drafters

The certificate is advisory. Here it identified two form errors in the section 44-1502 amendments (a missing underline on the word "until" and an omitted "not"), recommended gender-neutral pronoun and "this chapter" corrections, and raised one substantive concern: the post-2027 cost-of-living formula did not designate a state agency to perform the calculation and announce the new rate, which the AG said "could prove problematic."

Background and statutory framework

Idaho's initiative process is set up by Idaho Code chapter 18 of title 34. After filing, the AG issues a Certificate of Review under Idaho Code section 34-1809. The certificate is "advisory only"; the petitioner may "accept or reject" the recommendations in whole or in part. The AG's review focuses on legality and form, not policy.

After the certificate, the AG prepares short and long ballot titles. The titles must "impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure" (Idaho Code section 34-1809).

The Minimum Wage Law (Idaho Code section 44-1501 et seq.) sets Idaho's minimum wage at $7.25 (Idaho Code section 44-1502(1)), the same as the federal FLSA. Section 44-1502(2) sets a $3.35 minimum direct wage for tipped employees. Section 44-1502(3) allows employers to pay $4.25 to employees under 20 during their first 90 days. Section 44-1502(4) prohibits political subdivisions from setting higher minimums.

The federal Fair Labor Standards Act at 29 U.S.C. section 218(a) is the savings clause: "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."

Idaho Constitution article XII, section 2 grants counties and cities police power, "as are not in conflict with [the city's] charter or with the general laws."

Common questions

Did this initiative make it onto the ballot?
Idaho's signature-gathering requirements (especially after S.B. 1110, also reviewed by this same AG that year, raised the geographic signature requirement) are demanding. This particular initiative did not qualify for the ballot.

Does Idaho have any local minimum wage that's higher than the state minimum? No. Idaho Code section 44-1502(4) preempts local minimums. Until that statute is changed (by initiative or by the Legislature), no Idaho city or county can set a higher minimum wage.

What is Idaho's minimum wage now?
As of 2026, Idaho's minimum wage tracks the federal floor of $7.25. Counsel Idaho counsel for current rates and any subsequent legislative changes.

What's a Certificate of Review actually for?
It's a pre-circulation legal review. The petitioner gets advisory feedback before going to signature collection. The AG doesn't take a policy position. The recommendations are not binding; the petitioner can ignore them, accept them, or work them into a revised initiative.

Did the AG say the initiative would or wouldn't pass? No. The AG's review is limited to legality and form. Policy and political viability are explicitly outside scope.

Citations

• Idaho Code section 34-1809 (Certificate of Review process)
• Idaho Code section 44-1501 et seq. (Minimum Wage Law)
• Idaho Code section 44-1502 (specific minimum wage rates)
• 29 U.S.C. section 218(a) (FLSA savings clause)
• Idaho Constitution article XII, section 2 (county/city police power)
• Shahriar v. Smith & Wollensky Rest. Grp., Inc. (2d Cir. 2011) 659 F.3d 234 (FLSA savings clause)
• Williamson v. Gen. Dynamics Corp. (9th Cir. 2000) 208 F.3d 1144 (FLSA savings clause)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2021/06/C06022021_Minimum-Wage-14.pdf

Original opinion text

STATE OF IDAHO
OFFICE O F TH E ATTORNEY GENERAL
LAWRENCE G. WASDEN

June 2, 2021

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 Minimum Wage Rate for Employees and the Minimum Direct Wage Rate for Tipped Employees: to Strike Provisions that Allow Lower Minimum Wage Rates for New Employees Under 20 Years of Age: and to Expressly Authorize Counties and Cities to Establish Higher Minimum Wage Rates

Dear Secretary of State Denney:
An initiative petition was filed with your office on May 5, 2021. Pursuant to Idaho Code section 34-1809, this office reviewed the petition and has 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 indepth 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." Due to the available resources and limited time for performing the review, we did not communicate directly with the petitioners as part of the review process. 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 litigation that could ensue over the initiative's validity. BALLOT TITLES

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

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

Secretary of State Denney
June 2, 2021
Page 2

proposed titles for consideration.
standard set forth above.

Any proposed titles should be consistent with the

MATTERS OF FORM

The proposed initiative would amend the Minimum Wage Law, Idaho Code sections 44-1501, et seq. ("Minimum Wage Law"), and has two sections. Section 1 is merely a short title. Section 2 is, for the most part, in the proper legislative format for showing amendments to statutory provisions. Two minor corrections relating to format are recommended: 1. The initiative, in two instances, adds to Idaho Code section 44-1502(1 ), along with other text, the language "until June 30, 2023." Although the initiative underlines "June 30, 2023," it neglects to underline the word "until." All text added to a statute by an initiative should be underlined. To correct this, this language in the initiative should be changed to read "until June 30, 2023." 2. The language of the initiative striking the first sentence of the existing text of Idaho Code section 44-1502(3) omits the word "not" that currently precedes the phrase "less than four dollars and twenty-five cents ($4.25) an hour." To correct this the stricken text of the first sentence of Idaho Code section 44-1502(3) should be amended to read: "In lieu of the rate prescribed by subsection (1) of this section, an employer may pay an employee 11✓ho has not attained twenty (20) years of age a 11✓age which is not less than four dollars and t.venty five cents ($4 .25) an hour during the first ninety (90) consecutive calendar days after such employee is initially employed." SUMMARY OF INITIATIVE AND MATTERS OF SUBSTANTIVE IMPORT

I.

Summary of Proposed Initiative

The proposed initiative amends the Minimum Wage Law by adding and striking language from Idaho Code section 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 In doing so, the initiative effects four significant changes to Idaho Code section 44-1502. First, the initiative increases annually the minimum wage rate applicable to most non-exempt employees beginning July 1, 2023 until July 1, 2026, when the minimum wage will be $14.00 per hour. For 2027 and subsequent years, it establishes a formula to annually increase the minimum wage rate using any increase in the cost of living according to a specified federal consumer price index. 1

29 u.s.c. §§ 201-219.

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June 2, 2021
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Second, the initiative increases annually the minimum hourly direct wage rate for tipped employees beginning July 1, 2023 until July 1, 2026, when the minimum direct wage for tipped employees will be $10.00 per hour. For 2027 and subsequent years, it provides that the minimum direct wage rate for tipped employees shall not be less than the minimum hourly wage rate minus $3.90. Third, the initiative removes provisions of the statute establishing a minimum hourly wage of $4.25 for employees under 20 years of age during their initial 90 days of employment. Fourth, the initiative removes language from the statute that now prohibits political subdivisions of the state of Idaho from establishing minimum wage rates higher than those specified by Idaho Code section 44-1502(4) and adds language authorizing counties and municipal corporations to establish and enforce minimum wages rates higher than those set by the statute. Each of these changes is discussed more fully below.

A.

Increasing the General Minimum Wage Rate

The proposed initiative amends Idaho Code section 44-1502(1) to increase over a four-year period Idaho's current minimum hourly wage rate of $7.25 to $14.00 an hour on July 1, 2026. The minimum wage rate would increase to $9.50 per hour on July 1, 2023; to $11.00 per hour on July 1, 2024; to $12.50 per hour on July 1, 2025; and to $14.00 per hour on July 1, 2026. Further, under the proposed initiative, beginning July 1, 2027, and each year that follows, the minimum wage rate would increase if there was an increase in the cost of living as established by the United States Department of Labor's consumer price index for Urban Wage Earners and Clerical Workers (CPI-W, non-seasonally adjusted, U.S. City average) or a "successor index." The statute would be further amended to provide in a new subsection 44-1502(1)(e) that "[t]he new minimum wage shall be calculated by adding the existing minimum wage to the rise in the cost of living multiplied by the existing minimum wage and rounded to the nearest multiple of five cents."

B.

Increasing the Minimum Direct Wage Rate for 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 $3.35 to $10.00 per hour on July 1, 2026, in four successive years, as follows: to $5.50 per hour on July 1, 2023; to $7.00 per hour on July 1, 2024; to $8.50 per hour on July 1, 2025; and to $10.00 per hour on July 1, 2026. Beginning July 1, 2027, the minimum direct wages payable to tipped employees would be the minimum wage rate for un-tipped employees less $3.90.

Secretary of State Denney
June 2, 2021
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C.

Removing the Lower Minimum Wage Rate for New Employees Under 20 Years of Age

Idaho Code section 44-1502(3) currently allows employers, subject to restrictions, to pay employees under 20 years of age an hourly wage of $4.25 per hour during their initial 90 days of employment. 2 The initiative would strike this language, which would require that these younger new employees be paid the existing minimum wage. D.

Adding Language to Allow Counties and Cities to Establish Higher Minimum Wage Rates

As currently written, Idaho Code section 44-1502(4) expressly forbids political subdivisions from enacting higher minimum wage laws: "No political subdivision of this state, as defined by section 6-902, Idaho Code, shall establish by ordinance or other action minimum wages higher than the minimum wages provided in this section." The initiative would reverse this by striking the existing language and expressly authorizing local governments to set higher minimum wage rates. The initiative would replace the existing language with this language added to subsection (3) of the amended statute: "Counties named in Chapter 1 of Title 31, Idaho Code, and municipal corporations governed by Title 50, Idaho Code, may establish and enforce minimum wage laws higher than the minimum wages provided in this section."

II.

Substantive Analysis

The first issue is whether the higher minimum wage rates 3 set by the proposed initiative would be lawful under the FLSA. Even though the initiative's minimum wage rates are higher than the minimum wages under the FLSA, they nonetheless would be lawful under the FLSA because that Federal law does not preempt state minimum wage laws. The FLSA contains a savings clause specifically authorizing states to set higher minimum wage 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] .... "4 As a result, states are free to adopt and enforce minimum wage rates and overtime rules that

2

These provisions mirror those of the FLSA. See 29 U.S.C. § 206(g)(1 ). Currently, the general minimum wage rate under Idaho's Minimum Wage Law is $7.25, which is identical to the minimum wage rate under the FLSA. Idaho Code section 44-1502(3) currently allows employers to pay a minimum wage of not less than $4.25 an hour to new employees who are under 20 years of age during the first 90 consecutive calendar days after initial employment. Idaho Code section 441502(2) currently differs from FLSA minimum wage rates in its treatment of tipped employees. The minimum amount of direct wages that employers must pay to tipped employees under Idaho law is $3.35 an hour, which exceeds the FLSA's minimum direct wage rate of $2.13 an hour. See 29 C.F.R. § 531.59. 4 29 U.S.C. § 218(a). 3

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June 2, 2021
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afford greater protections for workers than does the FLSA. 5 Currently, 30 states have minimum wage rates that are higher than those of the FLSA. 6 Proposed Idaho Code section 44-1502(3) in Section 2 of the initiative authorizes counties and municipal corporations to establish minimum wage rates higher than the minimum wage rates in Idaho Code section 44-1502. This gives rise to the question whether a county or city could lawfully establish higher minimum wage rates under this proposed subsection. The answer is yes. Article XII, section 2 of the Idaho Constitution grants police power to counties and cities: 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. Article XII, section 2 grants police power to counties and cities, but with an important limitation: the exercise of those powers cannot be in conflict "with the general laws." Here, initiative provisions would not conflict with the general laws because Idaho Code section 44-1502 is the general law and, as amended by the initiative, would expressly authorize the exercise of police powers relating to minimum wage rates. In sum, the proposed amendments to the Minimum Wage Law do not appear to be unlawful under either State or Federal law.

Ill.

Recommended Revisions, Alterations, Suggestions, and Miscellaneous Issues

In addition to the comments already made in this certificate for review, the following are recommended revisions, alterations, suggestions, and miscellaneous issues for Section 2 of the proposed initiative:

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 ):
[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. kl at 247-48 (first 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); then citing Ervin v. OS Rest. Servs., Inc., 632 F.3d 971,997 (7th Cir. 2011) (same); and then citing Williamson v. Gen. Dynamics Corp .. 208 F.3d 1144, 1151 (9th Cir. 2000)). 6 See U.S. DEP'TOF LABOR, WAGE & HOUR DIV., State Minimum Wage Laws (updated May 1, 2021), https://www.dol.gov/agencies/whd/minimum-wage/state.

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June 2, 2021
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1.
The first sentence of subsection ( 1) of Idaho Code section 44-1502 currently uses the pronoun "his"; if the statute is amended, to be consistent with current drafting guidance this pronoun should be changed to "its." 7 2. The beginning language of subsection (1) of Idaho Code section 44-1502 of the proposed initiative, which reads "Except as hereinafter otherwise provided in this section," incorrectly refers to "this section"; because the exemptions from the minimum wage requirements are not found in section 44-1502 itself, but rather, are found in other sections of the chapter codifying the Minimum Wage Law, this added language should read "Except as hereinafter otherwise provided in this chapter." 3. It should be noted that the proposed initiative, with regard to minimum wage rates beginning July 1, 2027 to be determined using a statutory formula and the increase of the cost of living under a federal consumer price index, does not designate a State agency to make these calculations and provide notice of what any new annual minimum wage rate would be. That could prove problematic. 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 Petitioners via a copy of this Certificate of Review, deposited in the U.S. Mail to Chris Stroh, P.O. Box 9573, Boise, ID 83707. Sincerely,

LAWRENCE G. WASDEN
Attorney General
Analysis by:

Douglas A. Werth
Lead Deputy Attorney General

7 LEGIS. SERVS. OFFICE, RES. & LEGIS. BRANCH, LEGISLATION DRAFTING MANUAL (CONCISE VERSION) (Rev. May 2017) at 32, https://legislature.idaho.gov/wp-content/uploads/research/draftingmanual.pdf ("Avoid using gender specific words. The Idaho Code provides that the masculine includes the feminine. If you must use a gender specific word, use the masculine unless the context requires using 'she."').