Reflecting on NELP’s Partnership with the Local Solutions Support Center to Fight Preemption and Protect Pro-worker Advocacy

In recent years, the corporate lobby and anti-worker interests have harnessed the wonky sounding, yet powerful, tool of state “preemption” to chill local laws and organizing that threaten corporate interests. These groups have hijacked state legislatures to block cities and counties from passing higher minimum wages, paid sick days, rent protections, anti-discrimination laws, pro-immigrant policies, and more. This misuse of preemption doesn’t just benefit big business at the expense of workers and local democracy—it reinforces centuries of systemic racism and white supremacy.

Preemption stems from our nation’s shameful post-Reconstruction history. Immediately after the Civil War, Southern states were forced to move away from a system of “plantation localism” within a system of chattel slavery that allowed white plantation owners to exercise almost absolute control over the Black population on their land. Some states like North Carolina, Virginia, and South Carolina, propelled by a vision for racial equality from the ground up, initially implemented local government systems similar to New England townships, where local elections could lead to self-government and political engagement. As Black people gained power, however, white people responded by replacing those local government structures with a new Jim Crow system that reserved most power to the state. Today, when majority-black communities see their state government undo local campaigns they won, like Birmingham’s minimum wage increase, it is important to remember that the override directly stems from a nineteenth century white supremacist agenda—even as it takes on the trappings of a modern one.

To better respond to the threat of preemption, in 2019, NELP and the Local Solutions Support Center (LSSC), a national hub working to counter the abuse of preemption and strengthen local democracy, formed a partnership through which I became LSSC’s first legal director. I sought to share the legal expertise NELP has developed protecting pro-worker policies on the local level, while supporting and learning from the growing national effort to stop the abuse of preemption across a wider range of issues affecting working people.

NELP’s partnership with LSSC became even more timely as COVID-19 hit. Workers and organizers fighting to win just wages, safe workplaces, and tenant protections saw those efforts become more urgent than ever. Black, Latinx, Indigenous, immigrant, and other communities of color have experienced job losses, unsafe working conditions, the housing crisis, and COVID-19’s health implications at tragically disproportionate rates. These disparities are not incidental, but rather, the result of centuries of structural racism. For these communities, local government is sometimes the first and only site where they can meaningfully exercise political power and adopt a vision that centers their needs. This post highlights some key takeaways from the fight to defend local solutions in the last year, along with new legal resources to concretely help worker advocates and organizers identify and defend opportunities for local change.

Background

In advancing a vision for dignity, economic justice, and racial equity, NELP has long supported workers’ grassroots campaigns around the country. New ideas and campaigns often begin locally, expanding our sense of the role cities, counties, and towns can play in pursuing justice.

The Fight for $15 and a union stands out as an example of the critical role local organizing and policymaking has played in advancing racial and economic justice. The Black and brown worker-led movement began in November 2012, when New York City fast-food workers walked off the job demanding $15 and a union. Spreading to local communities from coast to coast, this movement has made $15 the starting point for a conversation about fair wages, and it has resulted in more than 50 cities and counties and 25 states raising their minimum wage.

Unfortunately, workers’ success locally has prompted an unprecedented backlash of state preemption. State laws banning the use of local authority to serve worker interests have significantly altered the landscape where workers can exercise power. Today, 25 states preempt (i.e., prohibit) local minimum wages. NELP has estimated that this has cost workers more than $1.5 billion annually. In addition, 17 states preempt local paid sick leave without establishing a statewide standard, 9 states preempt local fair-scheduling protections, and 41 states preempt most or all local regulation of Transportation Network Companies like Uber and Lyft. These are just a few examples.

The corporate lobby has similarly deployed state preemption to weaken organizing around other progressive issues, most of which also deeply impact workers’ lives. These include, for example, the fights for affordable housing, clean air and water, sanctuary protections for immigrants, broadband access, nutrition, public health, and gun regulation.

Future Fights –Resources for Advocates

Going into 2021, worker advocates and leaders must prepare to oppose new preemption proposals and fight to recover local authority. In 2020, workers, especially frontline workers, experienced the devastating consequences of COVID-19. Workers also, however, demonstrated incredible strength, demanding and winning better policies. Philadelphia, for example, adopted a local whistleblower ordinance to protect workers who speak out about unsafe COVID-19 conditions on the job. Seattle adopted premium pay (also known as “hazard pay”) for gig workers working for food delivery companies. While some state legislatures may build upon this progress, some will no doubt respond by, once again, preempting future local efforts.

Advocates and organizers should keep in mind the following resources as they explore local policymaking, defend past local laws, push back against new preemption threats, or seek to repeal past preemption or strengthen local authority in their state:

• Home Rule Summary Memos, 50 states (link here): LSSC has developed a summary of local authority for every state that can be found here. If worker advocates, city attorneys, and local officials want to better understand what kinds of policies they can pursue locally or what kind of power their state has to preempt, these memos provide basic background.

• Advocates Memos on Local Authority & Preemption for AZ, FL, MS, NC, PA, TN, TX (link here): LSSC has compiled memos for local advocates in these states to help them understand local authority in their state, get a sense of what’s preempted and what’s not, understand the basics of emergency powers in their state, see examples of COVID-19 response policies that they may have authority to pursue, assess opportunities for repealing past preemption, and evaluate whether ballot initiatives are available in their state.
• “Decision Trees” to Guide Analysis of Local Authority: LSSC has published several “decision trees” that offer a step-by-step guide for assessing local authority. They provide a starting point for city attorneys and others carrying out and discussing legal analysis of local authority. Worker advocates can look to the general decision tree when assessing local authority for worker policies (here).

• Emergency authority memo (here): As the COVID crisis persists, local officials and advocates continue to try to understand the scope of local emergency authority. In other words, what can they do with their emergency powers? And do emergency powers allow them to implement temporary policies like premium pay or paid sick leave that state law would likely preempt under normal circumstances? This paper on emergency authority seeks to provide a starting point for this analysis.
• Model Local Resolution for Increased Local COVID-19 Authority (link here): LSSC, NELP, and A Better Balance published a model resolution to help local governments demand stronger local authority from their governor and legislature to better deal with issues like housing, wages, sick leave, broadband access, and worker health and safety.

• Tracking of Anti-Protester Bills (here): LSSC has been tracking a new wave of anti-protester bills that sometimes limit local authority and may have consequences for worker organizing. This fact sheet summarizes recent anti-protester bills.

LSSC will continue to convene and support cross-issue campaigns to defend local democracy, and its legal network can provide support. NELP will also continue to provide support to worker advocates on local authority questions. Advocates can contact NELP (lhuizar@nelp.org) and the Local Solutions Support Center (lssc@supportdemocracy.org) with requests for technical support.