After Greitens’ minimum wage decision, more legal challenges may loom

Some experts expect more legal fighting over minimum wages in Missouri following Gov. Eric Greitens’ decision to allow a bill to become law that bars cities and municipalities from setting wage floors higher than the state’s.

In March, the Kansas City Council passed an ordinance that would gradually increase the city’s minimum wage to $13 by 2023. However, it now appears that will be superseded by the new state law.

Lauri Ealom | Via the Kansas City Board of Election Commissioners

On Aug. 8, Kansas City residents will vote on a ballot measure that would raise the city’s wage floor to $10 on Aug. 24 and $15 by 2022. That proposal also faces an uncertain future now.

Despite that uncertainty, the August election will proceed as planned, according to Lauri Ealom, director of the Kansas City Board of Election Commissioners. Both the ordinance approved in March and the measure at the center of the August election could spark legal battles, Ealom said.

Chris Hernandez, Kansas City’s director of communications, said earlier this month the city was not planning any legal action.

“Our city council has already made it clear that it supports a higher minimum wage for residents,” Hernandez said. “Anything else that happens past that point has not been discussed or decided.”

On the other side of the state, low-wage workers in St. Louis are bracing for Aug. 28. That’s the day the city’s minimum wage, which was increased to $10 following a February ruling by the Missouri Supreme Court, is set to drop back to the state-mandated minimum of $7.70.

A case over the St. Louis minimum wage advanced to the Missouri Supreme Court, where a February ruling allowed the city to set a wage floor higher than the state. | Via David Shane/Flickr

Richard Sheets, deputy director of the Missouri Municipal League, said that in most cases cities must adhere to the statutes of the state legislature.

Sheets said there are two types of cities in the state. Statutory cities are created by state statute and follow the letter of the law. There are also 45 charter cities — also known as home-rule cities — including Kansas City and St. Louis, where the “citizens of that community create their own form of government,” by drafting a separate charter and running their government with that charter as the foundation, Sheets said.

“It does free up those 45 cities somewhat from the oversight of (the) state legislature, but it only goes so far,” Sheets said. “In general, cities are creatures of the state, and they can’t be less restrictive than the state.”

Richard Sheets | Via the Missouri Municipal League

According to the Missouri Constitution, there can be no retroactive application of any state law to the cities. This means that if there was no law on the books restricting cities from raising the minimum wage higher than the state before a city passed its own measure, there would be reasonable standing for a court case, Sheets said.

Greg Casey, a political science professor at the University of Missouri who co-authored a book on the Missouri Constitution, said that there is no specific language in Article VI of the Constitution that gives the state power over any municipality on the issue of the minimum wage. He said that could allow for a case to be brought on the issue.

“There is a statute that does say that cities can’t impose their own minimum wage,” Sheets said. However, that language is placed “in the economic development statute,” as opposed to a section dealing specifically with wages, so some might argue it does not apply to the minimum wage issue, Sheets said.

Richard Reuben, a law professor at the University of Missouri, said the argument that the city ordinances existed before the state law is a weak one. He said that in court it would be better to leverage both cities’ statuses as home-rule cities and make the argument that maintaining their own economic sovereignty would allow each city to be more competitive from a national business perspective.

“There is a good, strong argument that minimum wage is a local concern,” Reuben said.

The question for the courts would be whether a local minimum wage ordinance could trump state law due to a “local concern,” or a special circumstance unique to that city.

Reuben said a case could be brought by an employee or business that could prove harm as a result of the minimum wage decrease.

Some Missourians involved in the fight over the state’s minimum wage want to see the matter put to voters on a statewide ballot. | Michael Stacy/Missouri Business Alert

Jeanette Mott Oxford, executive director of Empower Missouri, an organization that works for more protections for Missouri workers, said that her group has challenged similar laws in the past. She points to a case against HB 722, also known as the “bag ban,” a 2015 measure that included a provision to prevent municipalities from raising their minimum wage above the state’s. Lawmakers passed the bill over a governor’s veto in 2015, but HB 722 was superseded by this year’s minimum wage law.

Laura Huizar, a staff attorney with the National Employment Law Project, said that the new law essentially rendered HB 722 moot.

“The state has the power to take away local minimum wage,” Huizar said.

Still, Mott Oxford questions whether there is “anything about how they crafted this one that we’ll be able to challenge. I’m not sure that we have the answer to that yet.”

John Ammann, a lawyer who represented Empower Missouri in the case against HB 722, said that “the ultimate fight of state vs. local has not been had yet.”

Ammann said that while a case was plausible, he would recommend trying to put a statewide initiative on the ballot. That, he said, “should probably be where the fight is.”

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