There for a while I felt like Jeremiah crying in the wilderness in pointing out that the state Legislature could not raise the minimum wage in Nevada, because the voters in 2006 set the minimum wage and determined how it would be raised by voting for a constitutional amendment. It would take another constitutional amendment to change that, not a mere change in law.
Senate Bill 106 and Assembly Bill 175 propose to raise the minimum by different amounts.
But this week a writer at The Nevada Independent weighed in with a piece asking: “Can the Nevada Legislature raise the minimum wage?”
The writer concluded that at the Legislative Counsel Bureau opinion that lawmakers can do it is not binding law and if it passes someone is likely to file suit.
Today a Las Vegas newspaper columnist also broached the question of whether the Constitution bars lawmakers from raising the minimum wage.
He too concluded that, if either bill passes and the governor for some reason signs it, the issue will land in the courts.
In 2006 the constitutional amendment established the minimum wage would be $5.15 an hour if an employer provided health insurance and $6.15 if not. It provided for raising that minimum wage to match any increase in the federal minimum or raise it to account for an increase in the cost of living, whichever is greater. Today the minimums stand at $7.25 and $8.25.
The voters established both the minimum wage and the method for increasing it. How can lawmakers simply say that is merely the minimum minimum and they can increase it to whatever level they wish?
The Senate bill would raise the minimum wage 75 cents a year until it reaches $11 or $12, depending on health insurance, while the Assembly version would raise it $1.25 a year until it hits $14 or $15.
An Assembly committee was told by its LCB lawyer last week: “I spoke with the Legislative Counsel Brenda Erdoes. She told me that our office thoroughly researched this during the 2015 legislative session and then updated and confirmed that research during the drafting of AB175 this session. She said that as result of their research it is the opinion of LCB legal, based on the rules of statutory and constitutional construction, that the provisions of the minimum wage amendment to the Nevada Constitution do not limit the inherent power of the Legislature to establish by statute a new minimum wage that is higher than the minimum wage that is currently required by law.”
A Senate LCB lawyer told a committee hearing its bill this week: “In this case with this bill the constitutional amendment clearly states the employers must pay a wage of quote ‘at least’ the amounts set forth in the language of the constitutional amendment. Thus increasing the minimum wage by legislation would not conflict with the constitutional amendment and because there is no conflict with the constitutional amendment the Legislature has the power to enact legislation to increase the minimum wage. And that has been the opinion of the Legislative Counsel.”
But a previous fact sheet posted by LCB in 2015 stated: “Because provisions governing the minimum wage rate are included in the Constitution, any changes to the minimum wage provisions require a constitutional amendment.”
The Las Vegas columnist was told that was an error. The fact sheet has since been altered to delete that section.
But as the Nevada Supreme Court has stated: The expression of one thing is the exclusion of another.
The constitutional amendment states how the minimum wage is to be raised and that does not include permission for the lawmakers to raise it by some other means.
In fact, in the portion of the amendment that states how minimum wages may be raised to account for increases in the Consumer Price Index it clearly states: “No CPI adjustment for any one-year period may be greater than 3 percent.”
That indicates the voters intended to prevent rapid increases in the minimum wage even if the CPI were to jump, say 10 percent in one year.
The proffered $1.25 and 75 cents a year both exceed that 3 percent cap established by the voters. One more argument for the courts to contemplate should either bill become law.