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Tucson City Attorney: Parts of minimum wage initiative are unconstitutional

Published: Oct. 18, 2021 at 2:46 PM MST
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TUCSON, Ariz. (KOLD News 13) - In November, Tucson residents will vote on a proposition that could increase the minimum wage in the city to $15 per hour.

If passed, the Tucson Minimum Wage Act will mean around 85,000 workers will get raises.

The Prop 206 is a 6 page document, but there’s more to it than increasing minimum wage to $15.

Mike Rankin spells out his concerns in this memo KOLD obtained that he sent to the City Manager earlier this month. He addresses some requirements that would put the city, the court system and businesses in a tough position.

Some of those requirements are illegal, Rankin says.

Ted Maxwell is the president of the Southern Arizona Leadership Council — the voice of business leaders.

The council has come out against Prop 206.

Not the part about increasing wages in Tucson.

“The state minimum wage is already en route to $15,” Maxwell said.

He’s concerned about four and a half pages of the six page Prop 206 document “that are just either illegal or unconstitutional”, he said.

Specifically, Section 17-83 on how the minimum wage is paid, which Rankin considers unconstitutional.

Attorney Billy Peard argues the initiative is on solid legal ground
Attorney Billy Peard argues the initiative is on solid legal ground(KOLD)

Rankin writes that it “prohibits employers from using a payment method that requires an employee to have a valid social security number. This provision is in conflict with federal and state law.”

“Federal law requires that all employees either have a social security number or have a work visa,” Maxwell said.

The IRS spells that out to employers. They are “required to get each employees’ name and social security number” and that includes “nonresident alien employees”.

So is the provision unconstitutional?

“If you interpret it to mean that an employer cannot require an employee to provide a social security number in order to be paid then yes, I agree with the assessment that that would be unconstitutional,” said Joe Kroeger, a labor attorney at the law firm Snell and Wilmer.

“You’re really talking about undocumented workers and by eliminating not only how they’re paid, but dictating that they actually exist on payrolls, that can be investigated. If there are businesses out there that want to do things illegal, you’re encouraging that with that line in there, we don’t know why it’s there. I’ve never heard a good answer from the proponents of Prop 206. Why is that line even in there?” Maxwell said.

Billy Peard, an attorney who also drafted Prop 205, the Sanctuary City measure that voters shot down last year because it went too far, said it’s not a violation of federal law.

“Nothing in Prop 206 makes it permissible to employ somebody who lacks federal immigration status. It’s simply acknowledges a reality in our economy, which is that there’s always going to be a certain percentage of employers, whether it’s lawful or not, who are going to employ and having employed them,” Peard said. “The current law in fact says, you have to pay them. All this initiative adds to that argument or to that protection is that the employer must give them at least two options in the method by which they pay them.”

Tucson Minimum Wage Act faces possible legal challenges
Tucson Minimum Wage Act faces possible legal challenges(KOLD)

He said the two options could be cash or check.

The Immigration Reform and Control Act and the Legal Arizona Workers Act state it’s against the law to hire illegal workers.

But the Fair Labor Standards Act requires businesses, even those who hire illegal workers, to pay minimum wage for work done.

Peard and Kroeger say the provision is a first.

“I don’t think I’ve seen the attempt to have this provision address payment to individuals who don’t possess social security numbers. That’s a unique function of this,” Kroeger said.

City Attorney says parts of minimum wage initiative are unconstitutional
City Attorney says parts of minimum wage initiative are unconstitutional(KOLD)

And if it’s legally challenged, it could be a case of first impression, meaning there’s no case law and the new legal issue could be brought before a court.

“I could anticipate a couple of issues, like the ones we’re discussing, going to the state Supreme Court, potentially,” Peard said.

Other provisions Rankin calls illegal are the “attempt to establish expanded jurisdiction of Tucson City Court” and “private cause of action”.

Basically, Prop 206 gives not only an employee, but any interested party, “the right to bring a lawsuit against the city,” which would force the city to investigate the complaint.

Rankin writes “such legal actions are not authorized under Arizona law”. “The jurisdiction of the various courts in Arizona is established by the Arizona constitution and statute, and not by local codes.”

He writes “only the city and not a private party is authorized to bring a civil action in Tucson City Court.”

“Trying to open the doors of city court to lawsuits of this nature is likely problematic under the state constitution and law. The jurisdiction of the courts is established.” Kroeger said.

Peard disagreed saying there’s nothing in the state constitution that prevents it.

“It hasn’t been done before,” he said, “There’s nothing that I read and I’ve read all the provisions of the state statute that Mr. Rankin is also citing. I don’t see anything in that, which says you can’t do it.

Kroeger says an employee can already go to the Department of Labor to file a claim.

But if Prop 206 passes any private citizen or non-profit advocacy agency who files a complaint on behalf of an employee could receive 30 percent of the penalties recovered.

“I think that there would be an explosion of litigation attempting to seek these types of rewards,” Kroeger said, “and it’s not litigation that we’ve ever seen in Arizona.”

Peard said he drafted Prop 206 to give wage protections to undocumented workers.

“The protection is only as good as the enforcement and oftentimes the devil is in the details,” he said.

4 and a half pages of problematic details as Maxwell points out.

“In some ways we’re asking voters, if you want to vote yes for this, you’re going to be voting to violate the constitution or the federal state laws,” Maxwell said.

Though Peard argued he’s sure nothing in the initiative is unconstitutional, he said, “the initiative is written in such a way that if there were a paragraph or sentence that is deemed unconstitutional, it would simply be jettisoned out without effecting the remaining provisions.”

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