Judge Upholds ‘Tipped Workers Protection Act’ for November Vote

A judge has ruled that Proposition 138, also known as the “Tipped Workers Protection Act,” will remain on the ballot for the November election.

Raise the Wage AZ, a political action committee advocating for wage increases for service workers, challenged Prop. 138 in court back in June. They argued that the proposition was “sufficiently deceptive to the point of fraud and creates a significant danger of electorate confusion and unfairness.”

The group asked the court to declare that the proposed constitutional amendment violates the state constitution. They also wanted the secretary of state barred from certifying it for the November ballot.

Raise the Wage AZ has its own ballot measure, the “One Fair Wage Act,” which aims to increase the state minimum wage from $14.35 to $18 per hour. The committee claims that placing the competing measure on the ballot “will impede the exercise of a free elective franchise.”

However, Maricopa County Superior Court Judge Peter Thompson denied the challenge in a Tuesday ruling. He stated, “Plaintiffs have failed to cite to specific authority which would permit this Court, or any court, to remove an Initiative or proposed Legislative Constitutional Amendment because it interferes with or makes passage of a competing ballot measure more or less likely.”

The Raise the Wage measure would incrementally eliminate the ability for restaurants to use workers’ tips to reconcile their wages with the state minimum wage. Currently, state law allows restaurants to pay tipped workers $3 less than the minimum wage and use their tips to make up the difference.

In contrast, Prop. 138, presented by the Arizona Restaurant Association, allows employers to pay tipped workers 25% less than the minimum wage, provided they make at least $2 per hour more in tips.

Jim Barton, an attorney for Raise the Wage AZ, argued that the competing measure might mislead voters into believing it protects tipped workers when it actually subjects them to a lower minimum wage than current law. Judge Thompson disagreed, stating the measure was “neither misleading, deceptive nor fraudulent.”

In April, Rep. Analise Ortiz, D-Phoenix, criticized the group promoting Prop. 138 for failing to disclose their affiliations with the Arizona Restaurant Association during a House Commerce Committee meeting.

The measure received support from all Republicans and a few Democrats in the House of Representatives, passing by a vote of 35-24 in April. It initially failed in the Senate but eventually passed on June 12 with only Republican votes.

The Arizona Restaurant Association praised Thompson’s decision, calling the lawsuit “bogus” and thanking the court for swiftly denying the complaint. Steve Chucri, the group’s president and CEO, said, “It is clear the out-of-state special interests behind the lawsuit simply don’t want Arizona voters to have their say this November on the Tipped Workers Protection Act.”

Danny Seiden, president and CEO of the Arizona Chamber of Commerce & Industry, expressed support for Prop. 138, stating it will “boost” pay for tipped workers, protect their jobs, and keep costs down for small businesses and their patrons.

While Judge Thompson ruled the measure was not misleading, he noted that the short title “Tipped Workers Protection Act” would not be printed on the November ballots. “The political views of whether the goal of tipped worker protection is best accomplished by adopting or rejecting the proposed Amendment should not be conflated with rejection of the proposed Amendment before it even appears on the ballot,” he wrote.