The Future of Labor Localism in an Age of Preemption

Abstract

In recent years, labor and civil rights groups have successfully pushed for local regulation raising the minimum wage, creating new parenting and sick leave policies, and broadening anti-discrimination protections to address sexual orientation and gender identity discrimination. This article examines the viability of this worker-protective regulation at the local level in the face of current legal and political challenges. In particular, it considers the rise of state preemption laws that overturn local ordinances, which is the product of anti-regulatory mobilization at the state legislative level. The article provides case studies of state preemption and offers potential legal arguments for challenging preemption and safeguarding labor and civil rights localism. The author concludes, however, that given the uncertainty of whether these legal arguments will prevail in court, civil rights and labor advocates will need to engage politics at the state level to preserve and expand local innovations.

Keywords

discrimination gay/bisexual men and women gender discrimination labor and employment law minimum wage legislation civil rights federalism localism state legislature politics

Labor groups and social justice advocates are advancing progressive workers’ rights regulation at the state and local levels, successfully promoting measures to raise the minimum wage, create new family and sick leave policies, and broaden anti-discrimination protections that address sexual orientation and gender identity discrimination. These subnational reforms, what I broadly call “labor localism,” expand protections, wages, and benefits for millions of workers at a time in which gridlock and polarized politics make action difficult at the national level. More than just reactive or short-term, these reforms also deploy and advance new forms of social movement and labor movement organizing in the face of the declining power of traditional unions and collective bargaining. Labor and civil rights groups spread these initiatives across jurisdictions, building on successful local models and organizing campaigns, and in so doing endeavor to expand the base of political support for worker-protective policies. These innovations also harness the demographic, political, and economic power of cities and metropolitan areas, and the networks and organizing of immigrants and workers of color.

This article considers the practical promise and theoretical underpinnings of this subnational strategy, as well as the challenges and limitations of the subnational approach. Proceeding at a subnational level can result in a patchwork of benefits for workers; differing political receptivity and other factors mean that wages and rights will vary based on where an employee lives. To provide a viable strategy for protecting workers and to be consistent with labor and civil rights reformers’ ideals of social and economic inclusion for all workers requires that a subnational strategy include a framework for spreading positive initiatives. Ideally, any variation among jurisdictions would diminish over the long term as new labor organizing and empowered social movements help diffuse worker-protective initiatives.

This optimistic account of subnational labor innovation as well as the actual gains of recent years should point in favor of continued investment in subnational strategies. Yet as pro-worker innovations adopted by cities have spread, some states have responded by enacting legislation limiting the ability of local authorities to engage in labor and employment regulation. This rise of state preemption of local laws presents practical challenges to a strategy of relying on the expansion of rights at the local level and undercuts labor reformers’ faith that good labor and civil rights policies will win out over more regressive actions. It also exposes the limitations of the theoretical and normative accounts of relying on local power for expanding workers’ rights by making plain the threat of variation and fragmentation of workers’ rights across jurisdictions.

This article begins with an examination of the rise of the new labor localism, which I offer as a shorthand to refer to a range of pro-worker developments at the state and local levels to improve wages, benefits, and anti-discrimination rights (apart from collective bargaining arrangements). Situating case studies of state and local innovation against the backdrop of the literature on the role of cities and the value of federalism and city power, this article offers an account of how a strategy of subnational expansion might hold promise in the current political economy. I examine how the rise of state preemption threatens the exercise of local power and delineate potential legal arguments for challenging or limiting state preemption, focusing in particular on federal equal protection claims. My methodology includes doctrinal analysis of the legal structure of localism and preemption and case studies of local labor and civil rights reforms, preemption campaigns, and litigation efforts.

The New Labor Localism: Pragmatic and Normative Foundations

Since the mid-1990s, labor and civil rights groups have been successful in expanding protections for workers by pursuing legislation at the state and local levels. Twenty-nine states and 44 localities have minimum wage provisions higher than the current national minimum wage (Economic Policy Institute 2020; National Conference of State Legislatures 2020a). Twelve states and 23 localities have enacted some form of paid sick days (A Better Balance 2019; National Partnership for Women and Families 2019, 2020). Six states and the District of Columbia have enacted paid parental and family leave (Almukhtar et al. 2019). Voters in two states—Arkansas and Missouri—enacted measures in 2018 to increase minimum wages in their states (Almukhtar et al. 2019). Advocates at the state and local levels have also pursued other worker reforms, including laws that allow workers more control of scheduling their workweek (known as predictive scheduling or fair workweek laws) (Sen and Razza 2015; National Partnership 2019). Since 2014, six municipalities, two states, and the District of Columbia have enacted these fair workweek laws (Center for Popular Democracy 2020). In the area of civil rights, many states and localities have anti-discrimination laws to protect workers—laws that are unavailable at the national level and that most commonly prohibit discrimination on the basis of sexual orientation and gender identity.

The strategy of relying on states and localities to expand protections for workers is not entirely new. Living wage campaigns focused on increasing the minimum wage for city-contracted employees date from the 1990s (Zabin and Martin 1999). And at least since the 1980s, civil rights reformers have had a concerted strategy of expanding sexual orientation anti-discrimination laws at the state and local levels (Turner 2007).¹ After the success of initial campaigns to use city procurement power to increase wages for contracted workers in the late 1990s (Reynolds 2001), several cities in the early 2000s elevated wages and benefits for private-sector workers more generally (Reich, Jacobs, and Dietz 2014). Beginning in 2012, traditional unions invested in campaigns to increase the wages and conditions of low-wage workers by organizing unionized and non-unionized workers (Andrias 2016; Rolf 2016). The initial campaigns involved strikes from 2012 to 2015 by fast food workers, which ultimately resulted in a statewide order to increase the minimum wage to $15 in New York (Rolf 2016; New York State Department of Labor 2020). The momentum around some of these initiatives increased after 2010, with most of the wage and leave provisions put in place since 2012 (U.C. Berkeley Labor Center 2020).

Reformers have articulated strategic and political economy rationales for investing in the expansion of labor and civil rights protections at the subnational level. The decline of formal unions and collective bargaining and changes in the structure of employment have pushed workers to develop new political and institutional arrangements that take place outside the National Labor Relation Act’s (NLRA) collective bargaining regime (Drummonds 2009; Sachs 2011; Andrias 2016; Rolf 2016; Block 2018). In the absence of an increase in the federal minimum wage, national paid leave, or federal anti-discrimination law on the basis of sexual orientation or gender identity, reformers have turned to states and localities. These subnational campaigns are often supported and funded by national labor groups and national nonprofits but build out from intensive organizing at the local levels, targeting cities with expanding economies, diverse populations, and relatively progressive bases of potential support (Rolf 2016; National Employment Law Project 2018). LGBTQ groups since the 1980s pursued this strategy of expansion at the subnational level, embracing horizontal diffusion of anti-discrimination rights at the state and local level in the absence of comprehensive national legislation prohibiting discrimination based on sexual orientation and gender identity (Johnson 2016). In the case of LGBTQ and gender identity anti-discrimination, this subnational strategy has become less necessary as the Supreme Court ruled in June 2020 that Title VII of the 1964 Civil Rights extends to gender identity and sexual orientation.²

The national and local terrain may also be shifting with regard to paid sick and family leave. To respond to the COVID-19 pandemic, the US federal government in April 2020 enacted paid sick leave for certain workers affected by COVID-19, and granted paid leave to allow workers to care for a family member affected by the virus or for a child whose school or place of care is closed due to the virus. The legislation represents the first time the federal government has authorized paid family or sick leave, though it is slated to expire on December 31, 2020.³

The state and local strategy is also supported by a long-standing theoretical and normative framework that celebrates the distinct importance of subnational experimentation and decentralization. States and local governments permit engagement and participation of citizens that is often missing at the federal level. Localities in particular are celebrated as crucial “sites for democratic participation and local engagement” and as permitting smaller-scale cooperation to solve problems (Briffault 1990; Gerken 2010; Davidson 2019: 975). The US federalist structure allows 50-state experimentation, and scholars have argued that local governments (in part because there are more of them) are even better positioned than states to serve as entrepreneurial problem solvers (Gerken 2010). A related rationale for federalism and localism is that subnational governments also provide an alternative political space for policy development or the advancement of values at a time of polarization at the national and state levels that contributes to the blocking of policy implementation (even when it might be supported by a critical majority) (Bulman-Pozen and Gerken 2009). In this space, policy entrepreneurs can exploit American federalism to advance their desired policies at a more receptive level of government.⁴

In addition to this general theoretical framework that supports subnational innovation, a more specific value lies in having cities play a more central role in governance and policy implementation. Cities have populations, needs, organized groups, and values that may be distinct from those of rural areas (Zabin and Martin 1999; Schragger 2018). Cities and their surrounding metropolitan areas are increasingly non-white (Parker et al. 2018; Frey 2019), resulting in new policy priorities and political coalitions (Wolman, Swanstrom, Weir, and Lyon 2004; Liu 2017). Cities also have witnessed population growth over the past 40 years (Frey 2019), and along with their surrounding metro areas have become responsible for a greater share of their state’s gross domestic product (U.S. Conference of Mayors 2018). These forces converge to position cities as a distinct and important site of governance (Briffault et al. 2020). Since 2000, a growing movement of networked cities have advanced their power nationally and internationally. For instance, coalitions of progressive city leaders in the United States share interventions to address economic inequality, promote immigration inclusion, support policing reform, and advocate for pro-city policies at the national level (Avalos, Lander, Reynoso, and Waguespack 2015). Internationally, cities have exercised their power through compacts and coalitions, for example, creating a compact to lower greenhouse gas emissions in response to what some city leaders found to be insufficient action by international bodies and federal actors (Swiney and Foster 2019).

With respect to workers’ rights, scholars have argued that labor groups should pursue more regulation at the state level. The strong form of this argument posits that entrusting states to protect labor rights is the better course for reformers than an exclusive focus on the national government and that labor has more to gain from concentrating on progressive reforms at the state and local levels than to lose from the potential that localities might adopt reforms hostile to labor (Freeman 2006; Freeman and Rogers 2006). Even short of that strong view, other labor scholars have highlighted promising state and local reforms that are emerging given the limitations of the NLRA, and that can occur despite its preemption regime (Sachs 2011).

The innovations described in this article do not involve collective bargaining and thus do not directly implicate the NLRA regime, but the normative case for wage and civil rights reforms similarly draws on the value of experimentation and democratic innovation. Reformers and policymakers can test the effect of raising the minimum wage on the employment of low-wage workers, such as was recently studied in the context of raised minimum wages in Seattle and Los Angeles (Fairris, Runsten, Briones, and Goodheart 2015; Jardim et al. 2017, 2018). Some of the subnational labor innovations are new policy interventions that are responding to a changing workplace that includes more part-time and contingent workers, such as the rise of predictive scheduling laws that help retail, domestic, and service workers develop more stable and predictable work schedules (Rolf 2016).

Challenges: Variation and Diffusion

Even before considering the question of preemption, one must acknowledge the limits to the reach of these subnational policies. The most obvious limitation is that they can result in a patchwork of workers’ rights and regulation, through both intrastate and interstate variation. “Blue” cities or states (i.e., those with a Democratic Party leaning) might provide robust anti-discrimination rights, parenting leave policies, or predictive scheduling, whereas workers in less progressive “red” states or cities (i.e., those with a Republican Party leaning) lack such policies. Opponents of labor and civil rights reforms often discuss a separate aspect of the patchwork problem—that employers will be subject to a confusing array of differing policies within and across states. A related challenge is that businesses and employers who do not wish to pay the cost of local sick leave, family leave, or minimum wage policies might leave for other jurisdictions or disinvest in progressive cities. The question then becomes whether progressive localities are sufficiently appealing that businesses are willing to absorb some of these costs (Schragger 2018). This patchwork problem might soon be heightened in the aftermath of the COVID-19 pandemic, which is causing budget shortfalls in many states and cities. Some states are proposing delays in minimum wage increases, often at the urging of industry groups and businesses (Hawkin 2020). The ultimate outcome of the pandemic for worker-protective regulation and bargaining remains to be seen. The pandemic appears to be intensifying unionization campaigns at big employers such as Amazon, which may alter the labor landscape if substantive changes take hold (Amazonians United 2020; Bose and Hu 2020). And with regard to the leave policies at the center of this article, two states—New York and Colorado—expanded sick leave during the pandemic for the first time.

Variation also poses a challenge to reformers’ ideal framework for civil rights and workers’ rights, since ideally these reforms would occur at the national level. Anti-discrimination protections are essential rights that should not vary based on where a worker lives. One might tolerate some variation in wage and leave policies given jurisdictional differences in market and other economic conditions. But even in the context of wage and leave policies, there are baselines that one would ideally want protected at the highest level of government—that is the theory that justifies a minimum wage. In addition, many of these worker-protective policies, such as health, family, and child-care leave or scheduling predictability, are crucial to advance health, basic worker dignity, and gender equality (Sen and Razza 2015).⁵ The line between economic policies and universal rights–based policies may be hard to delineate.

To counter a patchwork of regulation, the hope is that these progressive labor and civil rights policies will spread horizontally—from city to city, or state to state. A powerful example of such diffusion is found in the spread of anti-discrimination laws on the basis of sexual orientation and gender identity at the state and local levels (Johnson 2016). Expanding reforms at the state and local levels might also result in vertical diffusion of rights from the local to the city level, and from the state to the national level (Johnson 2016). National policymakers and reformers can learn from the results of state and local experimentation. And reforms at the state and local levels might provide a political base or expand consensus for the adoption of state or national policies (Shipan and Volden 2012; Johnson 2016). Indeed, state adoption of LGBTQ and gender identity protection may have helped make the Supreme Court more receptive to extending such protections in federal anti-discrimination law. Workers’ rights reforms might also spread through a norms cascade wherein changes at the subnational level create new baselines and possibilities for workers. Joan C. Williams and Suzanne Lebsock have argued that a current norms cascade is being created in the area of sexual harassment through the #MeToo movement, which shifts social mores to make certain workplace practices intolerable (Williams and Lebsock 2018). So too, the expansion of rights, wages, and leave policies might alter baseline conceptions of the good workplace (Freeman 2006). In addition, the adoption of public policies can affect how citizens, interest groups, and others organize to sustain and expand these policies going forward (Hacker and Pierson 2014).

Labor and civil rights groups have invested in a strategy of both horizontal and vertical diffusion of these reforms. Successful local efforts are supported not just by grassroots local groups but by highly networked trans-state or national-level groups (Rolf 2016). These national groups support local movements, lift up subnational victories, and actively seek to spread successful reforms (Summers 2018). As an example of vertical diffusion, successful campaigns by workers’ rights groups may have laid the groundwork for the adoption of national sick leave and family and medical leave policies during the COVID-19 pandemic by building political receptivity and providing legislative models.

In sum, the rise of labor localism presents the possibilities of advancing meaningful labor and civil rights policies, and of expanding a base of support for worker-protective policies that have the capacity to spread nationally. At the same time, concentrating on the subnational level is in tension with labor and civil rights reformers’ ideal theories of the level of government at which workers should be protected. To be viable practically as well as consistent with democratic ideals depends on empirical assumptions that positive laws and regulations for workers will spread.

The Rise of State Preemption

The rise of state preemption challenges this faith in a strategy of labor localism. While federal law generally allows labor and civil rights innovations, some states preempt progressive labor and civil rights reforms. The Fair Labor Standards Act (FLSA) sets a national minimum wage floor for covered employees, but does not forbid states and localities from going higher.⁶ Similarly the Family and Medical Leave Act, which allows only 12 weeks of unpaid leave, does not forbid states from enacting paid leave provisions. Federal anti-discrimination law also allows states and localities to be more protective at the state and local levels as long as they do not conflict with federal law (Befort 1998).⁷

The problem of preemption arises when states preempt localities from enacting worker-protective and anti-discrimination legislation. As localities have expanded wages and adopted anti-discrimination laws, states have responded by enacting a wave of statutes preempting local authority to regulate. Currently, 25 states preempt local minimum wage ordinances. More than 23 states now preempt localities from enacting paid leave provisions, with a dozen of these enacted in the past three years (Economic Policy Institute 2020). Three states enacted laws that sought to preempt local anti-discrimination laws that provide protections on the basis of sexual orientation.⁸

Preemption of local regulation is prevalent not just in the labor area but across a number of domains including gun control, environmental regulation (for instance, preemption of local fracking regulations or plastic bag bans), immigration, and health care (DuPuis et al. 2018; Gulasekaram, Su, and Villazor 2019; National Conference of State Legislatures 2020b). The phenomenon can largely be understood as a political response to progressive regulation. Initially, the tactic of state preemption was used in the late 1980s by the tobacco industry to prevent local regulation of smoking ordinances (Hazen and Rosenfeld 2017). The National Rifle Association (NRA) adopted this tactic, working with the anti-regulatory American Legislative Exchange Council (ALEC) to enact state laws preempting local gun control (Valentine 2014).

Preemption is also made possible by an increasing ideological divide between cities and state electorates (the problem of blue cities in red states and the urban–rural divide), as well as the conservative capture of some state legislatures after 2010 (Quinton 2017; Riverstone-Newell 2017; Storey and Underhill 2018). With these political shifts, some states engaged in aggressive forms of partisan gerrymandering that weakened the power of urban areas relative to rural areas (Diller 2016). These political dynamics provide a pathway for use of state preemption; researchers have shown that those areas with partisan gerrymandering are particularly vulnerable to state preemption (Diller 2016). These dynamics link preemption to core democratic challenges that extend beyond preemption, including a political infrastructure in which cities are underrepresented in state legislatures—even while commanding a disproportionate share of the population—and thus may not be able to enact their policy preferences (Diller 2016). Republican-dominated legislatures and well-funded anti-regulatory interest groups provide the conditions for preemption bills to be adopted (Bulman-Pozen 2014; Hertel-Fernandez 2019). Preemption framed as such might be relatively low-salience for the general electorate but high-salience for legislators backed by well-funded interest groups. Preemption of labor-related legislation occurs more frequently in states with low minimum wages, weak worker protections, and low rates of unionization (Kim, Aldag, and Warner 2020). Although unionization can help counter state preemption, partisanship plays an important role; in Republican-controlled states greater unionization is linked to more preemptions (Kim et al. 2020).

ALEC and various business-related interest groups have been key players in wage and leave preemption measures by supplying model bills, lobbying state legislators, and providing funding support for preemption battles. Alabama relied on ALEC’s model “Living Wage Mandate Preemption Act” as a template for its 2013 preemption of the City of Birmingham’s minimum wage ordinance (American Legislative Exchange Council 2013). The National Federation of Independent Business was also a key supporter (Rivlin-Nadler 2016). After Milwaukee enacted paid sick days in 2008, the National Restaurant Association and the U.S. Chamber of Commerce helped move passage of a state law preempting the policy (Lipschultz 2009; Bottari 2013). ALEC and the National Restaurant Association helped push Wisconsin’s preemption law as a model for other states (Fischer and Bottari 2013).

In the area of anti-discrimination, industry groups and ALEC appear to have been less involved in legislative efforts, but states are learning from successful anti-discrimination preemption models. After Arkansas in 2015 adopted legislation effectively preempting local ordinances that protect LGBTQ people from discrimination,⁹ legislatures in Texas and West Virginia introduced nearly identical measures that would have similar preemptive effects if enacted (Bare 2015; Garcia 2016; Platt 2016).

North Carolina provides an example of the intensely partisan politics that shape preemption. In 2010, Republicans captured the state legislature, and in 2012 the state elected a Republican governor. Fueled by extensive spending from outside groups, the legislature began to enact a range of conservative anti-regulatory measures (Graham 2013). The legislature soon took on the issue of preempting local labor ordinances. After the City of Charlotte enacted an ordinance allowing transgendered individuals to use the bathroom that corresponds to their gender identity, the state legislature enacted the Public Facilities Privacy and Security Act (also known as House Bill 2 [HB2]), which generally preempted local anti-discrimination ordinances covering employment and public accommodation. The Act also provided that “[p]ublic agencies . . . require multiple occupancy bathrooms or changing facilities . . . be designated for and only used by individuals based on their biological sex” and defined “biological sex” as “[t]he physical condition of being male or female, which is stated on a person’s birth certificate.”¹⁰ HB2 also included a clause prohibiting local minimum wage ordinances. After a threatened boycott of the state, most notably by the National Basketball Association (NBA) and the National Collegiate Athletic Association (NCAA) in a state in which basketball is of tremendous cultural and economic importance, the bill was softened by instituting a moratorium on local minimum wage and anti-discrimination ordinances until 2020.¹¹

Preemption continued to be a tactic for thwarting local labor and anti-discrimination laws at least through 2019. State preemption bills that begin with a concern about one area (e.g., guns or the environment) can become a magnet for attaching measures that preempt labor and anti-discrimination regulations. In 2017, Michigan introduced a so-called Death Star preemption bill that then sought to bar a range of progressive local labor regulation, including scheduling for retail workers. (The bill also initially included a provision preempting local anti-discrimination ordinances before supporters withdrew this provision). In Missouri’s nicknamed “Christmas tree” preemption bill, legislators began with a ban on local plastic bag regulations, but later “hung on” additional provisions preempting minimum wage increases and paid sick leave (Fischer, Haddow, and Battari 2016).

Indeed, because of industry interest in preempting across such a broad range of substantive areas (e.g., related to regulation of environmental harms, firearms, public health, and immigration), newer and even more aggressive forms of state preemption have emerged (Briffault et al. 2017). This includes the rise of “punitive preemption” (Briffault 2019: 1997): legislation and reforms, often backed by the gun industry, which in addition to blocking local regulation that is inconsistent with state law also include a private right of action or impose penalties against local officials or local governments who adopt or maintain such regulations (Fischer et al. 2016; Briffault et al. 2017; Capps 2017). Even more wide-ranging super-preemption bills preempt all local lawmaking, as well as providing private rights of actions, and criminal and civil penalties (Briffault et al. 2017).

Preemption also has a racial valence. Labor and other advocacy groups that have fought preemption highlight the racial impact of state preemption, showing that many of those who benefit from minimum wage increases, for instance, are people of color (Partnership for Working Families 2017). In addition, many of the blue cities targeted by preemption have significant minority populations whereas the state legislatures are made up of a majority of whites.

The increasing breadth of preemption has led academics and commentators to cast preemption as discordant with conventional notions of federalism. Some commentators described preemption as an attack on city lawmaking power that threatens to upend traditional norms and frameworks of American democracy (Schragger 2018). And yet in other ways, preemption exploits a feature of American democracy, which is that cities lack the federal constitutional power given to states,¹² and that even putting aside gerrymandering, cities are underrepresented at the state and federal levels. Functionally, cities have power through population and the reach of their economies, yet their power is limited under federal and state constitutional design.

Preemption is made possible not only by the limitations of cities but also by the vulnerabilities of state legislatures. Groups such as ALEC exploit and intensify patterns of polarization (Hertel-Fernandez 2019). They also prey on vulnerable aspects of state legislatures, including that many state legislators operate part-time, and their staff are underpaid and lack capacity (Hertel-Fernandez 2019). Many of the preemption bills adopted by state legislators are identical in language and form and reveal no special tailoring to the specific concerns of a particular state. They are adopted by states with no apparent study of the history of local regulation in a particular domain, the potential externalities generated by local action, or the need for uniformity at the state level. For instance, when North Carolina preempted Charlotte’s ordinance on gender identity and public restrooms it tacked on off-the-shelf ALEC-drafted language from circulating bills that preempt minimum wage and anti-discrimination ordinances unrelated to the state-specific dispute stemming from Charlotte’s ordinance.

In theory, progressive organizations and workers’ rights groups could exploit these same vulnerabilities of state legislatures. And to some extent, a reason for the current asymmetry in policy success is that progressive and workers’ rights groups have been late to the game of trying to move subnational policy, particularly at the state level (Vogel 2014; Hertel-Fernandez 2019). Labor and civil rights groups also have funding disadvantages relative to anti-regulatory industry-backed groups (Hertel-Fernandez 2019). Part of the future of subnational innovation in this area will require addressing this organizational and funding asymmetry. Pro-worker innovation is the payoff from increased attention by progressive groups to the subnational domain while preemption reflects the groups’ lack of power relative to conservative and industry groups at the state level. Partisan realignments at the state level may change the preemption landscape going forward as Democrats take advantage of gains in the state legislatures and governorships in 2018 to advance their policies (Phillips 2019).

Challenging Preemption: Law and Design

If these local labor and civil rights policies are to survive, reformers need a response to the growth of state preemption.

Norms and Functional Accounts of Preemption and Localism

Labor localism implicates constitutional design and democratic theory. The US Constitution recognizes the power granted to states as primary lawmakers but not to cities, which are effectively seen as units of states. Cities must look to state law for legal protection. Also, localities may be prone to capture and corruption in ways that counsel against giving them too much power to regulate (Briffault and Reynolds 2016). For instance, civil rights law sometimes depends on preemption of local parochial legislation that is exclusionary (as seen in the area of housing in which exclusionary zoning and other laws are often adopted by localities) (Davidson 2019). In addition, what one might consider local experimentation may have external effects on surrounding communities.

To balance the benefits of localism and avoid its potential harms, advocates of progressive federalism and progressive localism argue for an approach in which subnational governments can be more protective than constitutional and national baselines but cannot go below them (Gerken 2012; Davidson 2019). Other academic commentators have expressed faith in the general power of progressive localism as a political matter to benefit the least-protected groups (Gerken 2012; Gulasekaram et al. 2019). These accounts are skeptical of state preemption when localities are acting to promote inclusion and when local actions do not produce external negative effects on surrounding communities.

State preemption in the labor and employment domain appears to be driven less by theories of regulating workers and employment at the state level than by substantive opposition to the worker-protective policies. Advocates for preemption often fail to advance arguments for why local labor regulation should be curtailed or to offer clear arguments in favor of uniformity. For instance, in the anti-discrimination arena, Arkansas, Tennessee, and North Carolina passed laws preempting local anti-discrimination ordinances that are inconsistent with or more expansive than state law. The laws did not explicitly refer to sexual orientation but were proposed and enacted in response to local anti-discrimination laws providing protections against discrimination based on sexual orientation.¹³ The laws were passed quickly with little supporting rationale, other than broad claims of protecting “intrastate commerce” and removing variation within the state. The suggestion is that regulated entities (i.e., employers) are harmed by the lack of uniformity. Yet, it is not clear what would support such a claim given the long history of local anti-discrimination protections in American law, and the prevalence of expansive local anti-discrimination law in the most economically thriving cities (Johnson 2016). In fact, the reaction by some national-level businesses to North Carolina’s actions suggests that local anti-discrimination protections are not economically harmful (Johnson 2016). The harms from dis-uniformity seem to be borne more by unprotected residents of the state who are not covered by laws.

From the standpoint of ideal allocation of power, a stronger argument might be made to support state preemption of local wage and worker condition regulation. The argument would be that in-state variation would create an economically harmful patchwork of laws, that they would have external effects on surrounding jurisdictions, or would lead employers to flee to jurisdictions with the least worker-protective regulations. Yet the harm to employers or others from this type of variation is unclear, and scant evidence of harm is typically proffered by preemption advocates. The battle over the minimum wage in Alabama provides an example. In 2015, the City of Birmingham adopted an ordinance raising the minimum wage to $10.10 an hour. Shortly thereafter, the State of Alabama, which lacked a statewide minimum wage, adopted legislation preempting any local minimum wage or employment benefit ordinance. According to its preamble, the statute would provide the state “complete control” over wages and leave “in order to ensure that such regulation is applied uniformly throughout the state.”¹⁴ The chief sponsor of the bill in the Alabama House, Rep. David Faulkner, emphasized the need for uniformity, because a “patchwork of minimums would cause problems” (Cason 2016). Sen. James (J. T.) Waggoner, who led the effort to pass the legislation in the Alabama Senate, similarly stated “[w]hat a hodgepodge we would have in this state if Birmingham passed a minimum wage and Montgomery passed one” (Lyman 2016). Yet as made clear by many wage reformers, Alabama’s market wages—like those of most other states—already vary within the state (Partnership for Working Families and the Southern Poverty Law Center 2017). While there may be legitimate economic objections to raising wages or establishing leave or scheduling policies, grounding the opposition in allocation of power concerns seems less coherent.

General Legal Constraints on Preemption

The majority of localities have lawmaking power granted by the state constitution or by state statute known as “home rule” (Barron 2003; Baker and Rodriguez 2009; Diller 2012). These jurisdictions with some form of home rule are allowed to adopt local laws even in the absence of explicit state authority to regulate in this domain (Diller 2017). In such states, localities may have power at the outset to pass a minimum wage, sick leave, or anti-discrimination law. But home rule does not typically guard against preemption. The prevailing home rule approach is that states can preempt local laws while safeguarding local authority against preemption for specifically “local” matters (Briffault 2019). Although a few states (notably California and Ohio) grant strong powers to localities to engage in lawmaking and limit state preemption, this is not the norm. In response, commentators concerned about threats to local lawmaking have recently started to articulate a new framework to strengthen home rule, providing a template for new state constitutional provisions that would give localities power to initiate lawmaking and to institute a presumption against state preemption (Briffault et al. 2020).

The rise of super and punitive preemption also opens up new legal theories for challenging preemption. Placing such excessive shackles on local lawmaking may be argued to violate the First Amendment, as well as state constitutional guarantees that protect legislative deliberation (Briffault et al. 2017).

Equal Protection Constraints on Preemption: Promise and Limits

Equality and anti-discrimination law may also provide a meaningful constraint on intrastate preemption. Anti-discrimination law is less explored in the recent literature on preemption because these arguments are unlikely to prevail in many areas of preemption, such as environmental and gun regulation (Davidson 2019). But an equal protection approach has more practical and expressive potential in the area of employment discrimination and workers’ rights. Since preempting wage, leave, and anti-discrimination regulation places particular harms and burdens on groups that have faced historic discrimination—such as women, people of color, and LGBTQ populations—arguments grounded in anti-discrimination law may be available. From a normative vantage point, equality-based arguments may have some appeal for labor reformers because they connect localism to an affirmative substantive vision of rights and protections.

State preemption statutes that impede the rights of historically disadvantaged or vulnerable groups might receive heightened scrutiny under the equal protection clause on the theory that the preemption is motivated by intentional discrimination. If preemption statutes explicitly rely on classifications, such as those based on race and gender, they must be justified by a compelling or important interest. For instance, North Carolina’s recent preemption law limits “sex” to “biological sex.” A reliance on what is known as a facial classification in law—the use of an identity characteristic in the actual language of the legislation—would thus trigger heightened scrutiny. The Supreme Court’s recent decision that the prohibition on “sex” discrimination in federal employment law includes gender identity supports this reading. Under heightened scrutiny, the state would then have to justify the law as furthering a compelling interest (such as privacy or safety) or in the case of gender—an “important” interest. In short, it requires a justification that might be difficult for a state to mount, given the lack of evidence that these legislative preemptions promote important or compelling state concerns. In many instances, preemption laws avoid using facial classifications that would trigger heightened scrutiny (Reed 2013). In that case, challengers would have to show through direct or circumstantial evidence that the preemption statute was motivated by intentional discrimination or animus.¹⁵

Litigation concerning Alabama’s preemption of Birmingham’s wage ordinance suggests the potential of equal protection theories using the latter approach. After the state effectively nullified Birmingham’s minimum wage ordinance and preempted municipalities from having wage or leave provisions that are more expansive than federal or state law, a group of African American Birmingham residents sued, claiming that the law was intentionally discriminatory against African Americans. The preemption law did not explicitly single out a racial or ethnic group, yet plaintiffs offered arguments to support a claim of intentional discrimination based on the history and surrounding circumstances of the law’s adoption. In particular, the plaintiffs’ core argument was that the state’s preemption was part of a long pattern of unresponsiveness to the economic needs of African American citizens in the state. The bill was passed hastily (a week after first reading and signed by the governor within two hours), and no African American legislator in the state house or senate supported the bill. African Americans are among the lowest-wage workers in the state and would disproportionately benefit from the increased wages (Partnership for Working Families and the Southern Poverty Law Center 2017). In addition, the plaintiffs argued that Alabama has a long history of seeking to subordinate African Americans and to allocate power between the state and local jurisdictions in a racially discriminatory manner. Plaintiffs and their amici also claimed that Alabama’s expressed goal of advancing statewide uniformity was undermined by the state’s failure to provide evidence or a record of deliberation concerning that goal; the lack of statewide uniformity in market wages within particular sectors; and the existence of a patchwork of other business regulations across the state. Under current equal protection standards, these facts could provide circumstantial evidence of racial animus violating the equal protection clause.

The district court dismissed the equal protection intent claims, but on appeal the federal court of appeals for the 11th Circuit reversed and allowed the equal protection claims to go forward. In late 2019, however, the full 11th Circuit (en banc) reversed the panel on other grounds, finding that the plaintiffs lacked standing to bring their equal protection claims.

Despite the outcome in Lewis, the case provides an effective template for using equal protection to challenge preemption. The history of discrimination in the state and targeting of minority localities; the disproportionate impact of these preemption statutes on people of color and other protected groups; the lack of deliberation (linked in part to the role of interest groups in the hasty enactment of legislation); and the absence of any meaningful discussion or evidence on the purported state rationale can be used to support an intent claim. Equal-protection intentional discrimination might be combined with arguments that attend to the undemocratic aspects of the preemption process. Such challenges could also highlight, where applicable, the role of anti-regulatory interest groups in shaping legislative processes, the existence of racial polarization, and structural underrepresentation of urban interests at the state level through gerrymandering or other distortions.

State preemption of local legislation that protects racial minorities or women would likely lead to heightened scrutiny. Most attempts at anti-discrimination preemption, however, involve sexual orientation or gender identity discrimination, which does not garner heightened scrutiny. For instance, Arkansas preempted the City of Fayetteville’s law protecting gay workers from employment discrimination. Such legislation could run afoul of the court’s decision in Romer v. Evans¹⁶ if it depends on explicit classifications. Preemption drafters are wise to Romer, and this new generation of preemption statutes eschew explicit classifications. As an example, Arkansas, Tennessee, and North Carolina’s laws assert that they preempt any local anti-discrimination law with protections that “extend beyond that provided by state law.”¹⁷ The legislation often takes the same form, titled as protection of intrastate commerce. In this way, the laws avoid language facially repealing protections for particular groups even as they are enacted after adoption of local ordinances expanding protection on the basis of sexual orientation or gender identity, and their effect extends only to sexual orientation and gender identity as the other categories often are protected at the state level. Despite the absence of specific reference to sexual orientation, challengers might argue that these preemption laws are motivated by invidious discrimination. Since sexual orientation does not receive heightened scrutiny, challengers would have to rely on Romer and United States v. Windsor.¹⁸ The short of it is that labor reformers can try to advance the claim that preemption laws are driven by animus, a “bare desire to harm” an unpopular group—such as gays and lesbians. Practically, the recent Bostock decision blunts the impact of many such state laws on LGBTQ and transgender employees.

In sum, equal protection arguments should be available in some factual situations, and courts may be receptive. As yet, however, no cases have been successful, so reformers would be wise to consider political as well as legal strategies.

Conclusion: Advancing a Politics of Subnational Labor Innovation

Despite the uncertainty generated by intrastate preemption, worker and civil rights protections are still worth advancing at the local levels. Local campaigns are potentially base building. They have capacity to engage workers and citizens in a political reform project, to expand support for worker-protecting policies, and to help entrench reforms and alter baseline norms on what protections are due workers. Preemptive laws are often advanced by groups and individuals who seek to broadly demobilize progressive voices by combining their efforts with other tactics such as racialized gerrymandering and voter identification laws. Local labor and civil rights campaigns, by virtue of their role in engaging workers and citizens, provide a potential counter to this politics of demobilization.

At the same time, the political realities of preemption and the limited legal strategies to combat preemption means that in many jurisdictions localism will prove an unstable base for protecting workers. A commitment to localism will have to confront the well-funded deregulatory effort to halt worker-protective policies regardless of which level of government enacts these policies. In that context, it will be important for civil rights and labor groups to directly confront the politics that make preemption possible. This effort will require engaging state politics, which many progressive groups have abandoned. Groups might consider making preemption battles themselves politically salient, as well as pushing for worker reforms at the state level. This strategy will require launching reforms at the state level even in states not known for their labor-friendly policies. For instance, labor’s efforts paid off in November 2018 when Arizonans voted by referendum to raise the statewide minimum wage (Wiles 2018; State of Arizona 2020). With some set of reforms, it might be better to target state legislatures and not local government in the first instance, as has been done with some predictive scheduling legislation. This approach will help mute concerns about the harm from intrastate variation in regulation. Finally, advocates can build in variation where appropriate. For instance, labor groups might seek to increase the minimum wage at the state level, while allowing variation in wage levels that honors local conditions.

Whatever the course, civil rights and labor groups cannot avoid politics. This article’s examination of the law and politics of preemption makes plain that labor and civil rights groups are unlikely to prevail without confronting the politics that have weaponized preemption. For those parties who seek to advance more expansive rights for workers, one way to see these local measures is less as an end point and more as a step in building a more robust political base for worker-protective measures, and of ultimately gaining power at higher levels of government.

Footnotes

Acknowledgements

I am grateful to Richard Briffault, Janice Fine, and Michael Piore for helpful comments on earlier drafts and to Daniel Fahrenthold, Ray Gdula, Alexsis Johnson, Kimberly Mejía-Cuéllar, and Alexander Perry for excellent research assistance.

For information regarding the data and/or computer programs used for this study, please address correspondence to ojohns@law.columbia.edu.

ORCID iD

Olatunde C. A. Johnson

1

In 1982, Wisconsin became the first state to prohibit forms of discrimination based on sexual orientation. See Wisconsin State Legislature. 2010. Wisconsin Fair Employment Act, Wisconsin Statute §§ 111.31–111.39.

2

See Bostock v. Clayton County Georgia, 590 U.S. __ (2020).

3

U.S. Congress. 2020. 116 Public Law 127. Emergency Paid Sick Leave Act §§ 5101-5111; Emergency Family and Medical Leave Expansion Act §§ 3101-3106; A Better Balance. 2020. Fact sheet: The Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security (CARES) Act. Accessed at (May 2020).

4

This is akin to the theory of “partisan federalism” advanced by Jessica Bulman-Pozen, who argued that allegiances to state or federal government shift based on party identification and that federalism provides the scaffolding for partisan conflict (: 1081).

5

Some researchers have argued that this new localism (Katz and Nowak 2018) can actually exacerbate inequality within states and regions and that one needs the national government to solve many of these problems (Tulumello 2018). One could also worry that increased inequality within states may exacerbate the politics of resentment that some argue are contributing to a polarized politics ().

6

U.S. Congress. 1938. 75 Public Law 718. Fair Labor Standards Act. Codified as amended at 29 U.S.C. § 201 et seq.

7

See, e.g., U.S. Congress. 2012. 88 Public Law 352. Civil Rights Act, Title VII. 42 U.S.C. § 2000h-4 (entitled “[c]onstruction of provisions not to exclude operation of State laws and not to invalidate consistent State laws”); see also California Federal Savings and Loan Association v. Guerra, 479 U.S. 272, 282–83 (1987) (explaining that limited preemption under federal anti-discrimination law “reflects the importance Congress attached to state anti-discrimination laws in achieving . . . the goal of equal employment opportunity”).

8

See Arkansas State Legislature. 2015. Intrastate Commerce Improvement Act, Arkansas Code Annotated §§ 14-1-402-403; North Carolina General Assembly. 2016. N.C. Session Law 3-2016 §§ 1-3 3 repealed by North Carolina General Assembly. 2017 N.C. Session Laws 4 § 1; Tennessee State Legislature. 2017. Equal Access to Intrastate Commerce Act, Tennessee Code Annotated § 7-51-1802.

9

See Arkansas State Legislature. 2015. Arkansas Session Act 137: An act to amend the law concerning ordinances of cities and counties by creating the Intrastate Commerce Improvement Act; to declare an emergency; and for other purposes. Accessed at (July 2019).

10

See North Carolina General Assembly. 2016. N.C. Session Law 3-2016 §§ 1-3 3 repealed by North Carolina General Assembly. 2017. N.C. Session Laws 4 § 1.

11

The replacement statute continues to preempt local governments in the state from regulating “access to multiple occupancy restrooms, showers, or changing facilities.” North Carolina General Assembly. 2017. N.C. Session Laws 4 § 2. While the preemption of such facilities is indefinite, the replacement statute also prohibits—until December 1, 2020—local governments from enacting or amending laws regulating private employment practices or regulating public accommodations.

12

U.S. Constitutional law treats cities as subdivisions of the states, subject to state regulation. See, e.g., Nixon v. Missouri Municipal League, 541 U.S. 125, 133-34 (2004); Hunter v. City of Pittsburgh, 207 U.S. 161, 176-79 (1907).

13

14

Alabama State Legislature. 2016. Alabama Uniform Minimum Wage and Right-to-Work Act, Alabama Code § 25-7-41.

15

To receive heightened scrutiny, it is not enough to show a disproportionate impact on a racial group; rather, the action must have a classification on its face or must be motivated by intentional discrimination. See Personnel Administration of Massachusetts v. Feeney, 442 U.S. 256, 273-74 (1979) (regarding law with impact on women, there must be proof that law was enacted “because of” not “in spite of” its effect on women); Washington v. Davis, 426 U.S. 229, 247–48 (1976) (rejecting claim that facially neutral statute is invalid under Constitution only because it burdens one race more than another). Such evidence of intentional discrimination may be shown through direct or circumstantial evidence. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977).

16

Romer, 517 U.S. at 627 (1996). (“Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”). The Supreme Court ultimately ruled in Romer that Amendment 2 violated the equal protection clause, with Justice Anthony Kennedy’s majority opinion concluding that “laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”

17

See North Carolina General Assembly. 2016. N.C. Session Law 3-2016 §§ 1-3 3; Arkansas State Legislature. 2015. Intrastate Commerce Improvement Act, Arkansas Code Annotated §§ 14-1-402-403; Tennessee State Legislature. 2017. Equal Access to Intrastate Commerce Act, Tennessee Code Annotated § 7-51-1802.

18

United States v. Windsor, 133 S.Ct. 2675 (2013). The Supreme Court held that the federal Defense of Marriage Act (DOMA), which effectively preempted state marriage laws allowing same-sex marriage, constituted discrimination of an “unusual character.” The Court relied on Romer and reaffirmed that the purpose and effect of DOMA was not to advance government efficiency but to impose a disadvantage and separate status on these marriages.

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