Fighting Preemption of Local Workplace Laws

What Is Preemption?

Preemption is a legal doctrine that gives states the power to limit or completely block cities or counties from passing laws on specific issues.

Using preemption laws, a state legislature can take away a city’s power to adopt higher local minimum wages and other pro-worker policies that are responsive to the local communities’ needs. Preemption undermines local democracy and governance and harms Black workers and communities of color.

Corporate lobbyists have driven the spread of preemption laws nationwide, most recently in response to the surge in local minimum wage laws. For corporate interests, blocking local efforts to raise wages—so the company can keep more profit—is a top priority. Conservative state legislatures are all too willing to do the corporations’ bidding.

At Least 25 States Are Blocking Local Minimum Wage Laws

Using preemption, at least 25 states are blocking cities and counties from adopting their own minimum wages. More than half of these states adopted preemption in the past decade, as pushback to the growing success of the Fight for $15 movement to raise wages locally.

Local minimum wage laws are important because they allow high-cost-of-living communities to set a minimum wage that better meets local living costs. And they provide a way for localities to set a higher minimum wage when the state is unwilling to act.

Many recent state preemption laws were passed in response to successful local campaigns to raise the minimum wage. In 2016, for example, the State of Alabama passed a preemption bill after the City of Birmingham adopted a local minimum wage law. This invalidated Birmingham’s higher minimum wage law and blocked all future local minimum wages in Alabama.

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Preemption’s Impact on Communities of Color

State preemption of local workers’ rights laws disenfranchises workers and exacerbates racial inequality when it disproportionately impacts communities of color. Workers of color are overrepresented among underpaid workers; they often represent majorities or significant shares of the workforce in our cities and large metro areas.

Preemption compromises the ability of localities to self-govern, threatens local democracy, and undermines the well-being of Black workers and communities of color.

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Racist Origins and Abuse of Preemption Laws

Preemption originates from efforts to preserve white supremacy in the South following the end of the Civil War. When formerly enslaved people in states like Virginia and the Carolinas started seeing political gains locally (in some cases getting elected to local office), white conservatives responded in part by weakening local governance. They manipulated the balance between local and state power to protect their own political interests and promote white supremacy.

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Abuse of Preemption Law Spreads

The abusive use of preemption law in recent years can be traced to the 1980s, when local governments began adopting smoke bans and smoke-free requirements to address public health concerns. The tobacco industry responded by promoting preemption as a “most effective means” to counter local policymaking that threatened their bottom lines.

In the 1990s, the National Rifle Association deployed a similar use of preemption when faced with a torrent of local gun regulations.

More recently, the American Legislative Exchange Council (ALEC), a powerful lobbying group, responded to a surge of local minimum wage campaigns in the early 2010s by promoting model minimum wage preemption legislation and offering resources like strategic planning assistance to state lawmakers wanting to block higher wages.

As a result of those efforts, since 2012, a dozen states have adopted minimum wage preemption policies. Today, a total of 25 states—most in the South—preempt local minimum wages.