The Margarine Debate Spreads Lessons to the Paid Sick Leave Mandate

Image via Wikipedia Commons

Supporters of a mandate to require employers to grant paid sick leave gathered enough signatures to put the question on the ballot. Legislators, in turn, voted to enact the mandate themselves. They did so not because they wanted the mandate — though some did — but rather so that they could amend or repeal it later. Passing a voter initiative so it can be amended later is a strategy legislators have used as far back as the margarine debate of 1948.

Yes, there was a margarine debate in 1948. Butter producers had long before convinced Congress to tax margarine — including a larger tax for margarine that was colored yellow. Michigan went further and banned the sale of colored margarine. Margarine manufacturers responded by selling their product with a vial of food coloring for people to mix in themselves. That minor inconvenience made butter, the more expensive product, a little more attractive. (Butter producers, by the way, could use food coloring with impunity.)

Margarine producers eventually convinced federal lawmakers to eliminate the taxes, helped in part by farmers that grew the plants whose oils became margarine. The coalition took the fight to the states that had tighter restrictions, including Michigan.

Michigan’s dairy-supporting Republican Legislature was not interested in repealing the colored-margarine ban. So the coalition decided to pursue an “initiated law” to repeal it. Initiated laws allow residents to bypass the Legislature and enact laws themselves by collecting enough signatures to put the question on the ballot for popular approval.

The Legislature does have a role in this process. The Michigan Constitution gives it the power to pass an initiated law when election officials certify that supporters have collected enough signatures. But in 1948, if the law had gone on the ballot and been approved by voters, the Legislature could not have amended it. (This was later changed. Initiated laws can now be changed with the support of three-fourths of both legislative chambers.)

The rule about not amending initiated laws gives legislators a strong incentive to pass them, even when they don’t like the content. And Republicans in 1948 thought so, too, and lawmakers allowed the sale of colored margarine by a vote of 86-7 in the House and 21-7 in the Senate.

Some lawmakers then wanted to exercise their power to reverse their recently passed law. But it was tough because then-Gov. Kim Sigler, also a Republican, wanted people to be free to buy colored margarine, so he opposed repealing the new law. So the dairy industry launched its own ballot question and collected enough signatures to put the issue on the ballot. It lost and Michigan residents were free to buy yellow margarine instead of having to mix it up at home.

So we’ve been here before. Since the margarine debate, reluctant legislators have approved several other initiated laws so they could preserve their ability to change the eventual outcome. When supporters gathered signatures to eliminate the state’s burdensome and complicated Single Business Tax, the Legislature enacted the law and then passed an equally burdensome and complicated Michigan Business Tax. Lawmakers then voted to increase it.

Lawmakers have the authority to amend the paid sick leave mandate. And they should consider using it. The mandate is expensive — it will cost employers at least $2.3 billion. It will have unintended consequences, like putting downward pressure on wages. It will disrupt the natural conversation that employers should have with employees about what benefits they want. And it may be an unfunded mandate upon local governments that could cost taxpayers as well.

There are problems with the way the current law is written. It can allow employees to “no-call, no-show” with impunity. Workers can interpret even a reminder from their employer as “retaliation,” and file a complaint. Any further action taken by an employer can result in the employee being granted “a rebuttable presumption of a violation” by the courts. This means that, depending on the employee’s interpretation of what happened, an employer could be subject to court costs, double damages, and a fine of up to $1,000.

Most employees already receive paid sick leave benefits. Lawmakers should consider repealing the new mandate or at least amending away some of its obvious problems. As the old margarine debate shows, they have the authority to amend or even repeal laws brought forth by voter initiatives. They should use it.