McKenna reinterprets statute to keep minimum wage flat

There are different kinds of laws.

There are the laws of nature. There are the laws of man. And some would argue that there are the laws of God.

But here in Washington state, we also have the laws of Rob McKenna.

HA regulars are well familiar with our Attorney General’s efforts to redefine both the scope and obligations of his office, so it should come as no surprise to see McKenna’s imaginative approach to the law applied to more mundane issues, for example, our state’s formula for calculating increases in the minimum wage:

The state Department of Labor and Industries asked Attorney General Rob McKenna if the state would be able to increase the minimum wage if inflation increases, but not above the level the current rate is based upon. In an opinion issued Wednesday, McKenna said no.

See, in accordance with 1998’s Initiative 688, Washington state’s minimum wage is increased annually by the rate of inflation, specifically the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). Last year the CPI-W actually decreased, so the minimum wage remained flat. This year the CPI-W is expected to increase slightly, but not by the amount it decreased the previous year. So McKenna says no minimum wage increase.

But what does the law actually say?

(b) On September 30, 2000, and on each following September 30th, the department of labor and industries shall calculate an adjusted minimum wage rate to maintain employee purchasing power by increasing the current year’s minimum wage rate by the rate of inflation. The adjusted minimum wage rate shall be calculated to the nearest cent using the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index, for the twelve months prior to each September 1st as calculated by the United States department of labor. Each adjusted minimum wage rate calculated under this subsection (4)(b) takes effect on the following January 1st.

I’m no lawyer, but the language seems plain… so plain that it actually describes a mathematical formula that a software programmer might express as something like this:

if (CPIW > 0)
then mWage := mWage + (mWage * CPIW);

The if statement is necessary because the statute specifically uses the word “increasing” not “adjusting” or something like that. I suppose one might theoretically argue that the plain language of the statute permits increasing the minimum wage by a negative amount, but that’s not McKenna’s argument; if it were, then the minimum wage should have decreased from 2009 to 2010. It didn’t.

No, in his opinion, McKenna argues that the tension between the words “maintain” and “increasing” makes the statute’s language ambiguous, going to great lengths to confuse the matter by engaging in a bunch of mathematical gobbledygook, culminating in his adoption of an entirely extra-statutory “index-ratcheted calculation.”  McKenna also asserts that the statute does not define an actual formula for adjusting the minimum wage, when in fact the use of the word “by” in constructing the sentence clearly denotes a course of action: “by increasing the current year’s minimum wage rate by the rate of inflation.”

Q: How shall L&I “calculate an adjusted minimum wage rate to maintain employee purchasing power”…?
A:by increasing the current year’s minimum wage rate by the rate of inflation,” that’s how.

That’s what the word “by” in this context means; the clause following it describes the method for achieving the intent stated in the clause that precedes it.

mWage := mWage + (mWage * CPIW);

Perhaps there is indeed a tension between the stated method and the stated intent, but the method is perfectly clear, despite McKenna’s elaborate effort to distract the reader with formulas and graphs… so clear that Oregon, which modeled its statute after ours, has already announced that its minimum wage will rise. One could even make a perfectly reasonable argument that the statute should behave as McKenna claims it does… but if so… well… that’s the sorta stuff that happens when we legislate via citizens initiative, and if the Legislature agrees that the statute needs to be fixed, they are always free to do so.

But Attorney General Rob McKenna should not be free to reinterpret the law by fiat.


  1. 1

    The Duke spews:

    Sloppy writing in the original law. Should have been written as “adjusted” and the rate should have gone down.

  2. 2

    LaborGoon spews:

    Meanwhile in Oregon, which has an indexed minimum wage modeled after ours, they have already announced that theirs will increase by 10 cents next year.

    Oregon’s Attorney General apparently isn’t in the business of injecting his personal politics into interpretation of the law. Oregon’s AG also had no problem approving and enforcing their state’s version of the Worker Privacy Act, which McKenna’s office claimed ran afoul of federal law.


  3. 4

    Daddy Love spews:

    The minimum wage is a perennial target of conservative hatred. If Rob McKenna could cook up some insupportable rationale for eliminating it, he would.

    He’s no moderate. The more of this sort of thing that he does, the better for the state’s voters to know it before he runs for governor in 2012.

    Didier for Gov!

  4. 5

    lostinaseaofblue spews:

    Re 4

    The reason for that disdain (not hatred) is the same as for any other misguided liberal policy long on feelings and short on sense.

    When I was 17 and supporting my car and movie money I made minimum wage; For a few months before getting a raise. That’s what the thing is for, entry level workers with little skill or proven talent to offer. It’s similar to union ‘prevailing wage.’ (A ridiculous joke making all public works insanely expensive- flaggers with no marketable skills earning $25 an hour and so on. This is no more or less than an insult to professionals or craftsmen who earned the right to command that kind of pay.) You hope to raise wages and all you get is higher inflation making the effective wage static. The rules of economics apply, even in progressive dream land divorced from reality.

    When Progressives actually study human nature and the way in which economies function realistically, perhaps they’ll have something to offer. Until then, dreams are nice when sleeping. Not so much when a person is awake.

  5. 6


    Labor Goon @2,

    Thanks for reminding me. I’d meant to include that link in my post, but forgot. So I’ve updated to include it.

  6. 7

    CC "Bud" Baxter spews:

    Goldy, thanks for exposing this tea-party prick for what he is. It isn’t bad enough that working peoples wages have been stagnant for thirty years, when the economy goes sour, precisely because of rich fucks who don’t know what they are doing, they choose this very opportunity to grind the working classes face further into the dirt.

    Every time I think McKenna can’t possibly be more of an asshole, he does himself one better and makes himself an ever bigger ass – all to serve the 1/10th of 1% at the top. You know, the people who already have more money then they could spend in a hundred lifetimes.

  7. 8

    sarge spews:

    “industries shall calculate an adjusted minimum wage rate to maintain employee purchasing power”

    I think that makes the law ambiguous. The purpose is to “maintain” purchasing power, not enhance it.

    Of all the things I can think of to complain about, that one isn’t too high on my list. (Although it is another example of the Republicans going out of their way to hurt the least advantaged).

    Here’s my list (not necessarily in order):
    HCR repeal lawsuit
    Peter Goldmark Suit
    Farrakhan v. Gregoire decision (ignoring the racial bias)
    Zeiger Endorsement

    Note to “LOST”: The number one reason Washington’s economy isn’t as bad as most in this country, is that our wages are higher. Conservatives that fancy themselves as economists, knowing generally just enough to be dangerous, can never seem to grasp the relationship between wages and the consumer economy. Real wages have been stagnant for 30 years. The middle class and the economy as a whole have eroded in direct proportion to the erosion of wages as a percentage of the economy. It’s not unions that have killed the middle class, it is outsourcing, greed, and public policy that keeps wages too low.

  8. 9

    Steve spews:

    @8 “Conservatives that fancy themselves as economists”

    Like Lost, he of the unwarranted smugness driven by a raging NPD, our dumbfuck wingnuts fancy themselves as constitutional scholars as well.

  9. 10

    rhp6033 spews:

    Lost @ #5: I was in college (yea, it’s ancient history), I was making $1.65 per hour. The federal minimum wage then was about $2.10 per hour, but if you didn’t have enough employees to be governed by the federal minimum wage, you received only the state minimum. Of course, every place within walking distance to campus kept their employees below the number required for the federal minimum wage to apply, so we all got the state minimum.

    But here’s the deal. Sure, we were students, and we didn’t have a lot of skills or even need a lot of money. But those that actually had to pay for their education out-of-pocket certainly couldn’t do so on $1.65 per hour.

    And more importantly, in that region of the country the FEDERAL minimum wage was considered to be “good money – if you can find such a job”. If you had a college degree you could make a decent living in the managerial or professional classes. But without a college degree, you got either the federal minimum wage – if you were lucky – or the state minimum wage. On that, you were expected to raise a family, raises were seldom given unless the minimum wage increased.

  10. 11

    rhp6033 spews:

    I mostly agree with Sarge @ #8. The law was written without taking into account the potential effect of deflation, so in that respect it creates an ambiguity. But I don’t find McKenna’s analysis to be a credible interpretation, because it requires him to create an average base wage covering a period of time of more than one year, which is not contemplated under any scenario in the statute. What is he going to do next year – go back three years to make sure he includes the one year of deflation in his calculations?

    That’s as silly as the Bush administration’s argument that the consumer price index should include computer equipment, because emerging technology reduces the cost of computer equipment over a year old. If you had followed that argumetn, you could get an 1985 IBM XT (40 MG hard drive) for next to nothing, so the CPI should be adjusted downward each year.

  11. 12

    TJ spews:

    A chronically unemployed asshole that hasn’t had a job in years discussing wages. That’s ironically richly funny!

  12. 14


    rhp6033 @11,

    The statute doesn’t contemplate the effect of deflation because, since the advent of the Federal Reserve, it almost never happens. Not once in the past half century.

    Which makes it doubly silly for McKenna to attempt to read in intent.

  13. 15

    proud leftist spews:

    A statute is subject to interpretation only if it contains ambiguity. This statute does not. It is clear as a bell. And, if a statute does contain ambiguity, it is to be interpreted from the perspective of what its objective is. McKenna followed neither of these fundamental rules of statutory construction. Funny how conservatives always accuse liberals of being activist when it comes to interpreting statutes and constitutional provisions . . .

  14. 16

    CC "Bud" Baxter spews:

    Keep that minimum wage low! In fact lower it! We need to find some extra money to pay the Hedge Fund managers $900,000.00 per hour. href="" rel="nofollow"

    The fact is there is plenty of money to pay people living wages. The problem is a tiny sliver of rich people is eating up 23% of all income while they are only 1% of the population. In fact, the upper 1/10th of 1% is getting a huge amount of undeserved, unearned money.

    Unlike what some people may think, I don’t think many of these people produce even one single thing of intrinsic value. What they do is devise games to push money around the table, and when it passes through their hands, they grab a big stinking wad of it. All for doing absolutely nothing!

    The Health Insurance industry is another group of highly paid people who in reality produce nothing of value. They are evil vampires sucking money from Americans.

    There is plenty of money to pay everyone fairly. The problem is we have worthless hedge fund managers getting paid 900K per hour. Virtually all of this money is being skimmed from average people, most of who do perform jobs with intrinsic value.

    I am absolutely sick of people saying these overpaid CEO’s “earn their money.” Bullshit.

  15. 17

    spyder spews:

    For Lost #5, that was a year ago, barely. Man, are the trolls acting really juvenile today. Must be the seasonal changes.

  16. 18

    Some Republican Dullard (it's satire people!) spews:

    Well, someone has to take charge and our beloved Queen Bee sure isn’t doing it. Good for McKenna.

  17. 19

    Roger Rabbit spews:

    McKenna will never be governor because he keeps proving he’s not a moderate Republican but in fact is a radical.

  18. 21

    God's Bookmaker spews:

    Lost In Narcissism Sez: This is no more or less than an insult to professionals or craftsmen who earned the right to command that kind of pay.)

    This is the conservative reformulation of Marx’s labor theory of value, a concept that every free market economics advocate takes such great pains to shoot down. Otherwise, you might start asking subversive questions as to what makes Alex Rodriguez worth $140million/year? or a hedge fund manager worth $1billion/year?


  19. 22

    Steve spews:

    @5 “A ridiculous joke making all public works insanely expensive- flaggers with no marketable skills earning $25 an hour and so on. This is no more or less than an insult to professionals or craftsmen who earned the right to command that kind of pay”

    As a design professional, Lost, I make a hell of a lot more than any flagger. Why the hell should I be insulted that someone else makes a living wage? And as a professional responsible for many public works projects, I say you have your head up your insulted ass.

  20. 23

    lostinaseaofblue spews:

    RE 16 and 21

    The social contract postulates that we give up unlimited liberty to the extent that we need security of person and property. That is, I give up the right to steal from a weaker neighbor. In exchange I expect my more powerful neighbor to respect my property and person. And I expect society to back these principles up with everything from moral codes to legal ones.

    Unless you’re a progressive. In that warped world view powerlessness entitles one to the property of others. Weakness doesn’t just merit protection. It means any one with more power is actually evil for being stronger. In this insane view we give up most of our liberties so that we can then be robbed as a form of payment for our lost liberties.

    How do you folks avoid assylums with a twisted world view like this?

  21. 24

    Moag spews:

    @8 There is no ambiguity in this language. You take the current minimum wage, increase it by inflation, and that’s the new minimum wage. There is no allowance for decreasing it when inflation is negative (and even McKenna didn’t argue that).

    What McKenna actually did was create a mythical minimum-wage-if-there-we-could-decrease-it-for-negative-inflation, and then used that in the calculation. Unfortunately for him, and for any decent sense of intellectual honesty, there is nothing in the law — not the direct language, not the intent language, nothing — that supports the creation of such a mythical beast.

  22. 25

    Moag spews:

    Important to note that McKenna’s opinion is purely advisory. If L&I follows his advice, anybody impacted by L&I’s decision could sue, and then it’s out of McKenna’s hands and into court.

    …And if McKenna doesn’t feel like taking the case that day, the plaintiff would win by default.

  23. 26

    Steve spews:

    “Lost In Narcissism Sez”

    heh- NPD much, Lost? Oh, forget it. Denial is part of the NPD load you carry.

  24. 27

    Roger Rabbit spews:

    @23 You’re a fairly intelligent guy, lost. Why do you have to practice being an idiot every day in order to be an idiot?

  25. 28

    Roger Rabbit spews:

    @20 If you’re referring to Governor Christine Gregoire (God I love how the word “Governor” rolls off the tongue in that sentence!), she certainly is your governor, whether you like it or not, if you live in Washington that is. We have only one governor, dolt! This is what elections are for. You guys lost. So your boy Dino doesn’t get to be governor. Our gal won. So she gets to be governor. One state, one governor. That’s how it works, dude. She’s your governor and mine, too.

  26. 29

    Roger Rabbit spews:

    Although I can’t quite understand the wingnut animosity toward Governor Gregoire, given that she’s almost as Republican as the Republicans.

  27. 30

    Roger Rabbit spews:

    I think wingnuts hate certain people just because they like hating people. They don’t even know what the people they hate stand for. Or care. Haters simply like to hate. It doesn’t matter who, what, or why. For them, hating is an end in itself. It makes them feel good. Hating is the wingnut orgasm.

  28. 31

    Richard Pope spews:

    I guess they could have increased the minimum wage by a negative amount for 2010.

    For example: 100% + (-1.2%) = 98.8%

    That is what happens when you increase 100% by a negative 1.2%.

    Of course, no one suggested that result last year.

    There is also a law to index social security benefits for inflation.

    Even though inflation was negative in 2009, there was no decrease in social security benefits for 2010.

    How is the federal statute worded, and what are Obama and Holder proposing to do for 2011 with indexation of social security benefits?

  29. 33

    rhp6033 spews:

    Lost @ 23: The “social contract” theory of government, having it’s origins in British political theorists Hobbes (The Leviathon) and Locke (Three Treatises on Government), postulated that some individual liberty would be sacrificed for the common good. Hobbes’ theory postulated an absolute monarchy to which individuals surrendered their liberty to save them from a life which would otherwise be “nasty, brutal, and short”. Locke rejected the absolute monarchy, instead arguing that there were “natural rights” of man which were inalianable (not subjet to transfer to the monarchy), most principally the rights to “life, liberty, and property”. It’s interesting that Jefferson, in drafting the Declaration of Independence (which borrowed heavily from Locke), dropped “property” and instead replaced it with “pursuit of happiness”.

    So where do we draw the line between where government can regulate and enforce private conduct, and where it can’t? There are arguably many different places along a continuom which apply. Neither party has a monopoly on protecting liberty more than the others. The Democrats are willing to accept more government regulation of economic activity in pursuit of what they believe to be the common good, whereas the Republicans are more willing to accept intrusion into personal lives in the name of homeland security or their perception of beneficial moral values. Other nations set their own boundaries in accordance to their own priorities and problems.

    But postulating a tax as “theft” or “class warfare” is nonsense. Every nation in the world has, through most of their history, required a larger share of the taxes to be paid by those who have the most to pay. It just makes sense – the purpose of taxes is not to punish someone (with the exception of “sin taxes”), but to raise revenue.

    In parts of England and much of Europe, taxes in towns and cities were imposed based on the number of feet of “streetfront” a house or business occupied – which also had a beneficial side effect of reducing the footprint of cities by encouraging wealthy home owners to “build upwards”, and thereby saving more land relatively near town for agriculture or grazing (thereby reducing everyone’s transportation/labor costs).

  30. 34

    sarge spews:

    I concede defeat. My argument (#8) that the law is ambiguous has been successfully refuted. Nice work. I retract my previous statement on the matter.

  31. 35

    countrygirl spews:

    @5 Flaggers make what the market will bear. That’s capitalism. I think that $25.00 per hour is far too little to risk one’s life by working in traffic. If anything, the dangerous nature of the work warrants a wage far higher than what they make, but contractors aren’t concerned about much but the bottom line, and they consider these workers expendable just like you do.
    Look at the statistics related to occupational injury and death and you’ll see why they make more than someone who works at a minimum wage job. Deaths on the job in the construction industry are more than twice the state average (9/100,000 workers as opposed to 4.1/100,000 workers).
    The fact is that they are protecting public safety and deserve to be compensated appropriately.
    AS to the minimum wage, the only way we keep our economy moving is to get money into the hands of those who will spend it.

  32. 36

    Richard Pope spews:

    Proud to be an Ass @ 32

    Thank you for the link. Looks like the federal SSA benefits are calculated in exactly the same way McKenna is proposing for Washington.

    To summarize, for federal SSA benefits:

    1. There cannot be a negative COLA. So benefits stayed the same for 2010, even though there was deflation in 2009.

    2. When there is no COLA due to deflation, and inflation starts again, you go back to the CPI index figure the last time an adjustment was made. You have to subtract the deflation from the inflation, before you can have a future COLA.

    If there is no COLA in one year, how is the next COLA calculated?

    Assuming Congress does not intervene by enacting a general benefit increase, the next COLA would become effective in December of the next year that has a third-quarter average CPI greater than the average for the last cost-of-living computation quarter.

    For example, because there is no COLA effective for December 2009, the next COLA (2010 or later) will use the average CPI for the last cost-of-living computation quarter—the third quarter of 2008—as the base. That average is 215.495, so any future third-quarter average CPI must exceed 215.495 for that quarter to be a cost-of-living computation quarter.

  33. 37

    Michael spews:

    Um… I just searched all over the country for flagger jobs that pay $25 an hour and couldn’t find a single one. The going rate is around $11.

    I know a couple of engineering techs the work for “the gov’ment” and I doubt they more than $20-25 an hour.

    Lost is an idiot.