The Politics of Preemption and Local Labor Laws: From Minimum Wage to “Right to Work”

Published May 25th, 2016 -  - 05.25.163


Increasingly frustrated by their inability to affect employment law at the federal and state level, progressive advocates have turned their attention to local government.  At this level, they have been able to enact ordinances to raise the minimum wage, guarantee paid sick day laws, and even protect LBGT rights in the workplace — proposals, which have all failed at the federal level.  Conservative groups, most notably, the American Legislative Exchange Council (ALEC), have fought these reforms by lobbying for state bills preempting local action.

But, in another context, this dynamic has been turned on its head: ALEC has led the campaign to enact local right to work ordinances.  While ALEC’s instrumentalism has been noted, progressives also have a conflicted position on preemption.  In the face of a rigid preemption regime governing federal labor law, the progressives cannot explore whether the NLRA would benefit from more regional variation as it has in the minimum wage context.

The Rise of Municipal Level Minimum Wage Laws

Local minimum wages laws proliferated beginning in 2012, with 32 cities and counties setting their own wage floors.  Before 2012, only five localities had raised their minimums independently.  Proponents of these local laws believe they provide workers with higher wages where state and national efforts have stalled, address the higher cost of living in cities, and create a forum to experiment with legislative innovations, such as indexing, which states have been slow to adopt.  A broad array of progressive groups support this type of legislative action including the National Employment Law Project (NELP) and the Service Employees International Union (SEIU).

State Preemption of Minimum Wage Laws

States have responded by passing laws prohibiting localities from instituting local wage thresholds.  At least fourteen states have enacted this type of legislation with Alabama, Idaho, and North Carolina enacting laws that preempt local minimum wage increases this year.  As outlined previously here at OnLabor, states may grant, either expressly or by implication, local units of government the power to enact municipal ordinances in this area, but the state can revoke the ability to legislate in areas where the state had delegated power only implicitly.

ALEC has been leading the effort to pass these wage preemption laws.  Endorsed by its board in 2013 and posted on its website, ALEC’s model bill, the Living Wage Mandate Preemption Act, is designed to prevent municipal governments from enacting laws that increase the minimum wage at the local level.

The Rise of Local Right to Work Ordinances

Despite its model legislation aimed at suppressing local control, ALEC and its affiliated organization, the American City County Exchange (ACCE), are part of a coalition championing municipal level right to work ordinances.  ALEC posted a model local right to work ordinance on its website.  The New York Times reported that proponents of this legislation were using Kentucky as a testing ground but hoped to spur similar legislation in Ohio, Wisconsin, and Pennsylvania.

Federal Preemption of Right to Work

Nine Kentucky unions challenged the local ordinance in Hardin County, Kentucky contending that §14(b) of the National Labor Relations Act (NLRA), which provides an exception for “states and territories” to enact right to work legislation, does not encompass localities.  §14(b) states that:

“Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”

Proponents of the ordinance pointed to Wisconsin Public Intervenor v.  Mortier and City of Columbus v.  Ours Garage & Wrecker Service, Inc., in which “state” had been interpreted in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Interstate Commerce Act (ICA), respectively, so that local action was not preempted.

On February 3, 2016, U.S.  District Judge David Hale ruled in United Automobile, Aerospace and Agricultural Implement Workers v.  Hardin County that “section 14(b) is the only exception to NLRA preemption of the field of labor relations, and it does not extend to counties or municipalities.”  The court concluded that “state” should not be read to include localities, as it was in FIFRA and the ICA.  Looking at the specific language of the NLRA, the court interpreted “state” to exclude local laws, so as to read this term consistently throughout §14(b).  As a result, the court held that the ordinance’s provisions establishing right to work in Hardin County was preempted by the NLRA.

Advocacy, Policy, and Preemption

Progressive advocates for workers’ rights have been quick to condemn the local right to work ordinances, despite their opposition to preemption in the minimum wage context.  From a policy perspective, criticism from groups such as the National Employment Law Project and the Economic Policy Institute are entirely consistent.  They have described ALEC as engaged in a campaign to drive down wages and erode labor standards by lobbying states to pass laws preempting local wage floors and urging the adoption of local right to work ordinances.

When preemption is taken into account, ALEC’s ideals and policy goals are in tension.  ALEC’s goals of enacting free-market and limited government reforms favor minimum wage preemption and right to work laws.  However, ALEC’s belief that “genuine accountability to hardworking taxpayers results when state and local legislators work with members of the community to determine a plan of action that is right for each individual state, city or town” suggests they believe in local power to make decisions.  However, they do not support many local level ordinances, such as minimum wage increases.  ALEC and ACCE describe these ordinances as the result of “big government activists… targeting local governments to create oppressive policies that could not survive at the state capitol.”  ALEC’s support of local right to work, a policy that has failed at the state level in Kentucky, suggests that the organization’s support or opposition to an act of local government is not about whether an action is an appropriate use of local power, but instead, dependent on whether ALEC favors the policy at issue.

In contrast, unions and other progressive groups do not purport to base their support for minimum wage increases or opposition to right to work measures on ideas of accountability or direct democracy.  These groups have been explicit about making gains for workers wherever possible in the face of state or federal opposition.  Therefore, the friction between their ideals regarding preemption and policy goals is less pronounced.

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