HOW LOCAL GOVERNMENT CAN PROTECT WORKERS' RIGHTS EVEN WHEN STATES DO NOT WANT THEM TO: OPPORTUNITIES FOR LOCAL CREATIVITY AND PERSISTENCE DESPITE DOUBLE PREEMPTION.

• Date: 01 April 2024
• Author: Gerstein, Terri,Gong, LiJia

 Introduction 978
                 I. Opportunities for Impact: How Localities--Even When Doubly-
                 Preempted--Can Advance and Protect Workers' Rights 982
                 A. Enactment of Local Labor Standards Laws 983
                 1. Overview 983
                 2. What Can Be Done in Doubly-Preempted
                 Localities? 991
                 B. Establishment of Dedicated Labor Agencies or Units
                 Within Local Government 995
                 1. Overview 995
                 2. What Can Be Done in Doubly-Preempted
                 Localities? 998
                 C. Workers' Boards 1005
                 D. Being a Model Employer and Improving Conditions for
                 Local Government's Own Public Employees 1008
                 E. Procurement and Contracting 1011
                 1. Generally 1011
                 2. Project Labor Agreements and Community Benefits
                 Agreements 1013
                 F. Licensing and Permitting 1015
                 G. Using Tax Credits or Other Incentives to Promote
                 Improved Working Conditions 1018
                 H. Involvement By District Attorneys and Other Criminal
                 Prosecutors 1020
                 I. Public Leadership, Education, and Outreach 1022
                 1. Communications 1022
                 2. Linguistic Needs 1024
                 3. Solidarity Actions 1025
                 4. Shareholder Power via Local Pension Funds 1025
                 II. Local Strategies to Push Back Against Abusive State
                 Preemption 1026
                Conclusion 1029
                

INTRODUCTION

Historically, protecting workers and advancing workers' rights have not been a core function of local governments. (1) Although localities have long served constituents' needs in a wide range of ways, this expansive role has not until very recently included addressing residents' struggles as workers experiencing precarious, underpaid work with insufficient protections. In the past ten years, however, a number of local governments have begun to play a critical and growing role in relation to workers' rights, using a range of tools and strategies. (2)

Localities have passed workplace laws creating new and essential rights, and they have enforced these laws, often using innovative strategic and/or collaborative approaches. More than 20 localities have created dedicated departments, offices, or sub-agencies focused on worker issues. Several local governments have created boards or councils that provide workers with a voice or formal role to inform policymaking. Localities have also had an impact on their own municipal employees as well as the broader local labor market by raising their own workers' wages, providing paid leave, facilitating collective bargaining, and otherwise improving conditions for local employees.

Some localities are incorporating labor compliance and/or job quality considerations in their procurement process, or in relation to the issuance of permits or licenses. Finally, local leaders have used their public leadership role, sometimes described as soft powers, to highlight worker issues in various ways, including through community education and outreach, issuance of reports, holding hearings and convenings, and publicizing available resources.

This surge of activity at the local level has resulted in part from stagnation at the federal and, sometimes, state levels. (3) As such, the Fight for 15 campaign and other worker advocates and organizations have--through seeking increased local minimum wage floors--helped pave the way for more innovative policymaking by local governments to advance workers' rights. (4) Some of these protections, like statutes mandating higher minimum wages, paid sick leave, or fair scheduling, have later been adopted at the state level. In this way, local government is playing the "laboratory" role that Justice Brandeis observed states playing in New State Ice Co. v. Liebmann. (5)

Indeed, some of the most innovative labor policies in the United States have been adopted at the local level in recent years.

Localities are particularly well-positioned to set minimum labor standards because metropolitan economies account for the overwhelming majority of economic growth and employment growth. (6) As such, local governments should have the authority to direct that growth and ensure that the benefits accrue to all working people.

At the same time, however, a second anti-democratic development now constrains many localities considerably. As the role of local governments in advancing worker protections has grown, conservative state legislatures have sought to quash this local organizing and policymaking via preemption. (7) Over the past two decades, conservative state legislatures have enacted exceedingly broad preemption proposals, sometimes known as "the new preemption," that would virtually end local policymaking over a wide range of subjects as well as punitive measures that do not merely preempt local action but also threaten local officials or governments with criminal or civil fines, state aid cutoffs, or liability for damages. (8) Conservative state legislatures have preempted local efforts to increase the minimum wage, guarantee paid sick leave, require fair scheduling, regulate gig employers, and set prevailing wages for municipal contracts. (9) For example, at least 26 states have passed preemption laws prohibiting local governments from setting minimum wages higher than the state minimum wage. (10) In some cases, states have gone beyond targeted preemption of specific policies and sought to use field preemption to eliminate all local workplace regulation. (11)

Indeed, this new preemption was initiated in part as backlash from corporate actors against the leadership many local governments have taken to strengthen workers' rights and has been replicated via business lobbying groups like the American Legislative Exchange Council (ALEC) and the Cicero Institute. (12) This new preemption, however, has now grown to encompass all sorts of issues beyond workplace regulation, including reproductive health, gun safety, the regulation of plastic bags, and more. These efforts have deleterious impacts on democracy and racial equity, as gerrymandered state legislatures suppress the authority of metropolitan centers where more communities of color reside. The preemption of local policies to support workers' rights is most common in the South and Midwest, where these laws are part of a long history of efforts to limit the rights and freedoms of Black people. (13)

Meanwhile, even in more hospitable landscapes, all localities (as well as states) must contend with federal preemption in relation to worker protection laws they pass. Some cornerstone federal workplace statutes do not present this challenge; rather, they act as a floor above which states and localities may enact higher standards. For example, this is true of the Fair Labor Standards Act, which governs minimum wage, overtime, and child labor, 29 U.S.C. [section] 218(a); the Family and Medical Leave Act, which requires certain employers to provide unpaid leave to qualifying employees, 29 U.S.C. [section]2651; and Title VII of the Civil Rights Act, as amended, which protects employees and job applicants from employment discrimination based on race, color, religion, sex, and national origin, 42 U.S.C. [section]2000e-7.

However, other key federal workplace laws preempt local and state action; depending on the federal statute, the scope of this preemption can be narrow or broad. The scope of the Occupational Safety and Health Act (OSH Act) is relatively limited: it only preempts state or local action when there is an Occupational Safety and Health Administration (OSHA) standard or rule, addressing a particular and specific workplace hazard; even then, states and localities may take action if the law, regulation, order, or government action protects the general public, and any protection of workers is incidental. (14)

In contrast, the National Labor Relations Act (NLRA) has far broader preemptive scope: Under San Diego Building Trades Council v. Garmon, (15) states and localities are preempted from passing laws arguably protected or prohibited by the NLRA or that add to the NLRA's remedies, while under Machinists v. Wisconsin Employment Relations Commission, (16) state and local governments are precluded from enacting laws that regulate or overly influence the course of bargaining--what Congress intended to be controlled by "the free play of economic forces." (17) Even within these broad limitations, however, there are exceptions: states and localities may act as a market participant in a proprietary capacity, in other words, to protect their interests as purchasers of goods and services. (18) They are also not preempted from action that addresses matters "deeply rooted in local feeling and responsibility," such as violence or trespassing. (19) Indeed, many states have taken non-preempted action in recent years that have ultimately helped strengthen worker power in various ways. (20)

In this way, a number of localities face what we would describe as "double preemption," constraints from both federal and state government that limit the potential scope of local activity on worker justice matters. Nonetheless, there remains considerable space for local governments--even those that are doubly-preempted--to take action to protect and advance workers' rights.

This Article discusses the landscape of increased pro-worker developments at the local level. First, it sets forth the various ways that cities and counties have used their powers to address the needs of constituents as workers. Then, it considers, in relation to each overall area of action, how doubly-preempted localities can nonetheless find room to maneuver and have an impact. Finally, this Article examines strategies for localities to push back against preemption itself in order to be able to legislate on matters of critical importance to their constituents.

I. OPPORTUNITIES FOR IMPACT: HOW LOCALITIES--EVEN WHEN DOUBLY-PREEMPTED--CAN ADVANCE AND PROTECT WORKERS' RIGHTS

The growth of local government action to protect and advance workers' rights in recent years has led management law firms and other management-aligned commentators to argue that employment laws have gone local (21) and note that the municipalization of employment law is part...