AG: Minimum wage law covers disabled - East Valley Tribune: Business

AG: Minimum wage law covers disabled

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Posted: Thursday, February 8, 2007 5:28 am | Updated: 6:42 pm, Fri Oct 7, 2011.

A voter-approved state minimum wage law contains no exemption for disabled workers who employers used to be able to pay less, Arizona Attorney General Terry Goddard concluded Wednesday.

In a formal legal opinion, Goddard acknowledged that federal law allowed employers to pay people with limited abilities a “commensurate” wage — some percentage of the $5.15 an hour federal minimum.

But Goddard said that Proposition 202, which imposed a new state minimum wage of $6.75 an hour, contains no such exemption, unlike similar measures approved last year in Ohio and Missouri. And he said the new Arizona law supersedes the federal law — and the exemption in that law.

Goddard’s opinion could damage efforts by the state Industrial Commission to find ways to interpret the new state law to allow for temporary exceptions for those who eventually could be trained to work at minimum wage and permanent exceptions for those who cannot.

The attorney general said the only way to fix the problem is to alter the law. Goddard warned legislators, though, that their ability to do that themselves is constitutionally limited to provisions that “further the purpose.”

But a legislative staff attorney, in his own legal opinion last week, said efforts to craft a legislative exemption are unconstitutional.

Kenneth Behringer said there is no way to conclude that excluding some people from the newly enact law actually furthers its purpose.

And Goddard said the only other choice is to take the issue back to voters — something that would require either a special election or waiting until 2008.

Wednesday’s new opinion ultimately could force the layoff of thousands of workers who until now have been paid less than the federal minimum wage under a provision of the Federal Labor Standards Act.

Laura McGrory, chief counsel of the Industrial Commission, said she had not had a chance to study Goddard’s opinion.

But McGrory said there still may be an answer short of another vote.

She said the Industrial Commission has some latitude under federal law to declare that certain people are not “employees,” a move she said could provide the exception needed.

McGrory conceded, though, that option has certain risks. She said federal law already defines someone performing work or services for wages as an “employee,” no matter what the state might decide.

The issue has created a schism in the disabled community.

Some individuals or their parents argue that work is being done and these people are entitled to at least $6.75 an hour.

But others argue that there are people who lack the ability to be trained to ever earn a living and should at least be able to be paid something for their efforts.

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