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Legislators in Annapolis will again consider whether to raise the state’s minimum wage to $15 in the 2019 legislative session. Maryland’s local officials should be aware that the state minimum wage bill brings with it potentially significant consequences for the future of local democracy in the state. State legislators may seek to revoke counties’ and cities’ long-standing power to enact a local minimum wage. This fact sheet aims to provide context for Maryland’s local lawmakers as this question approaches.
Nationwide, local governments have seen a rapid rise in preemption laws over an expanding range of issues. Together, these laws have begun to erode home rule in significant ways. Any effort to prevent local governments in Maryland from adopting a higher local minimum wage should be seen as part of a broader trend and threat to local democracy.
Separate from a local official’s or local government’s position on whether to raise the minimum wage, Maryland’s local officials should be prepared to defend their long-standing home rule powers and tradition of innovative and responsive local democracy.
Ultimately, for Maryland’s local leaders, a bill to enact a $15 minimum wage statewide carries important implications for their communities’ workers, their local and state economies, and the future of local democracy in the state. The statewide $15 minimum wage bill under consideration will likely involve efforts in Annapolis to revoke localities’ existing power to enact local minimum wage laws. Aside from a particular local official’s views on whether raising the minimum wage is the right solution to their community’s needs, local officials in Maryland will need to decide whether to actively protect their long-standing home rule powers and tradition of innovative and responsive local democracy. As this fact sheet aims to demonstrate, the risks of not defending local authority in the current environment are arguably higher than ever before.
[i] See, e.g., Anne Arundel County Code, art. 10, tit. 8 (Consumer Protection); Baltimore County Code, art. 13, tit. 10 (Miscellaneous Provisions and Consumer Protection); Montgomery County Code, ch. 11 (Consumer Protection).
[ii] See, e.g., Anne Arundel County Code, art. 10, tit. 9 (Landlord and Tenant Rights); Calvert County Code, ch. 75 (Minimum Livability Code); Carroll County Code, tit. XVII, ch. 171 (Livability Code); Charles County Code, ch. 81 (Minimum Livability Code); Talbot County Code, ch. 88 (Minimum Livability Code); Montgomery County Code, ch. 29 (Landlord-Tenant Relations).
[iii] See, e.g., Anne Arundel County Code, art. 11 (Licenses); Baltimore County Code, art. 21 (Permits, Licenses, and Business Regulation); Carroll County Code, tit. XI, ch. 110 (Business Licensing); tit. 6 (Licenses); Harford County Code, ch. 157 (Licenses and Permits); Montgomery County Code, ch. 30 (Licensing and Regulations Generally); Prince George’s County Code, subtit. 5 (Businesses and Licenses).
[iv] See, e.g., Anne Arundel County Code, art. 11, tit. 6 (Food Service Facilities); Baltimore County Code, art. 21, tit. 8 (Food Trucks); Prince George’s County Code, subtit. 12, div. 2 (Food Service Facilities).
[v] See, e.g., Anne Arundel County Code, art. 11, tit. 15 (Taxicabs); Baltimore County Code, art. 21, tit. 17 (Vehicles for Hire); Wicomico County Code, ch. 205 (Taxicabs); Harford County Code, ch. 232 (Taxicabs); Talbot County Code, ch. 174 (Taxicabs); Montgomery County Code, ch. 53 (Taxicabs); Prince George’s County Code, subtit. 20 (Taxicabs and Limousines).
[vi] See, e.g., Baltimore County, art. 13, tit. 2 (Air Pollution); Harford County Code, ch. 109, § 109-12 (Air Quality Control); Prince George’s County Code, subtit. 19, div. 1 (Air Pollution).
[vii] See, e.g., Baltimore County Code, art. 13, tit. 8 (Smoking in Public Places); Harford County Code, ch. 149, art. II (Smoking and Sale of Tobacco Products in County Buildings); Talbot County Code, ch. 159 (Smoking and Tobacco Products); Montgomery County Code, ch. 24, art. II (Smoking, Tobacco, and Nicotine).
[viii] See, e.g., Baltimore County Code, art. 29, tit. 2 (Human Relations, Prohibited Practices); Harford County Code, ch. 95 (Discriminatory Practices); Montgomery County Code, ch. 27, art. I (Commission on Human Rights).
[ix] Montgomery County Code, ch. 27, art. XI; Prince George’s County Code, subtit. 13A, div. 2.
[x] National Employment Law Project, Fighting Preemption: The Movement for Higher Wages Must Oppose State Efforts to Block Local Minimum Wage Laws (July 2017) at 2, https://s27147.pcdn.co/wp-content/uploads/Fighting-Preemption-Local-Minimum-Wage-Laws.pdf.
[xi] NELP analysis of state laws that expressly preempt local minimum wage laws.
[xii] Local Solutions Support Center, State Interference Primer: An Introduction to the Growing Threat of “New Preemption” (on file with author).
[xiii] Richard Briffault, The Challenge of the New Preemption, Stanford Law Review (June 2018), Volume 70, https://review.law.stanford.edu/wp-content/uploads/sites/3/2018/06/70-Stan.-L.-Rev.-1995.pdf.
[xiv] See, e.g., Lori Riverstone-Newell, The Rise of State Preemption Laws in Response to Local Policy Innovation, The Journal of Federalism volume 47, number 3, pp. 405–406 (May 2017), https://academic.oup.com/publius/article/47/3/403/3852645 (discussing how “[r]ecent preemption efforts can be understood, at one level, as part of longstanding campaigns waged by industry groups hoping to stop or limit progressive local policies in order to create a friendlier business environment for themselves”); National League of Cities, Civil Rights in an Era of Preemption: A State-by-State Analysis (2018) at 3, https://www.nlc.org/sites/default/files/2017-03/NLC-SML%20Preemption%20Report%202017-pages.pdf; Bryce Covert, “Red state legislatures are taking away workers’ raises and paid leave,” ThinkProgress, Mar. 28, 2017, https://thinkprogress.org/iowa-minimum-wage-paid-sick-leave-preemption-44168f0a223/; Mary Bottari, The Center for Media and Democracy’s PRWatch, The ALEC-backed War on Local Democracy (Mar. 31, 2015), https://www.prwatch.org/news/2015/03/12782/alec-backed-war-local-democracy.
[xv] National Employment Law Project, Fighting Preemption: The Movement for Higher Wages Must Oppose State Efforts to Block Local Minimum Wage Laws (July 2017) at 3, https://s27147.pcdn.co/wp-content/uploads/Fighting-Preemption-Local-Minimum-Wage-Laws.pdf (citing American Legislative Exchange Council, Living Wage Mandate Preemption Act, https://www.alec.org/model-policy/living-wage-mandate-preemption-act/).
[xvi] Joy Borkholder et al., National Employment Law Project and Partnership for Working Families, Uber State Interference: How Transportation Network Companies Buy, Bully, and Bamboozle Their Way To Deregulation (Jan. 2018) at 19, https://s27147.pcdn.co/wp-content/uploads/Uber-State-Interference-How-Transportation-Network-Companies-Buy-Bully-Bamboozle-Their-Way-to-Deregulation.pdf.
[xvii] Richard Briffault, The Challenge of the New Preemption, Stanford Law Review (June 2018) at 2003, Volume 70, https://review.law.stanford.edu/wp-content/uploads/sites/3/2018/06/70-Stan.-L.-Rev.-1995.pdf.
[xviii] Id.
[xix] Id.
[xx] Id. at 2004 (noting also that the law was partially invalidated by City of El Cenizo v. Texas, No. 17-50762, 2018 WL 2121427 (5th Cir. May 8, 2018)).
[xxi] Id. at 2004.
[xxii] “Under SB 1487, any state legislator may request the state attorney general to investigate and report a claim that a local official action violates state law. On finding a violation, the attorney general must notify the offending local government and, if the local government ‘fail[s] to resolve the violation within thirty days,’ must notify the state treasurer, ‘who shall withhold and redistribute [to other localities] state shared monies’ until the violation is resolved. If the attorney general concludes merely that the local measure ‘[m]ay violate’ state law, the attorney general must immediately bring a special action in the state supreme court to determine the issue. However, in order to contest the action, the defendant local government must ‘post a bond equal to the amount of state shared revenue’ it received in the preceding six months—a requirement that virtually no locality would be able to meet.” Id. at 2005.
[xxiii] Id. at 2006.
[xxiv] Id. at 2007.
[xxv] Id. at 2007.
[xxvi] Id. at 2007.
[xxvii] Katherine Shaver, “Maryland lawmaker cancels bill to limit local control over new cellular facilities,” The Washington Post, Mar. 21, 2018, https://www.washingtonpost.com/local/trafficandcommuting/maryland-lawmaker-cancels-bill-to-limit-local-control-over-new-cellular-facilities/2018/03/21/91243428-2d2c-11e8-8688-e053ba58f1e4_story.html?utm_term=.1f110d5a66e9.
[xxviii] Md. Code Ann., Lab. & Empl. § 3-1302; Marni von Wilpert, Economic Policy Institute, “State and local policymakers should beware preemption clauses,” Working Economics Blog, Jan. 18, 2018, https://www.epi.org/blog/state-and-local-policymakers-should-beware-preemption-clauses-snuck-into-legislation/.
[xxix] Todd Richmond, “Wisconsin’s minimum wage set to go up finally,” AP Alert – Political, May 29, 2005.
[xxx] Em Westerlund et al., “Minnesota: Please don’t join Wisconsin and Iowa in stripping cities of their power,” MinnPost, May 17, 2017, https://www.minnpost.com/community-voices/2017/05/minnesota-please-don-t-join-wisconsin-and-iowa-stripping-cities-their-power.
[xxxi] United States Department of Labor, Minimum Wage Laws in the States (Updated January 1, 2019), https://www.dol.gov/whd/minwage/america.htm (last viewed Jan. 30, 2019).
[xxxii] See National Employment Law Project, Fighting Preemption: The Movement for Higher Wages Must Oppose State Efforts to Block Local Minimum Wage Laws (July 2017), https://s27147.pcdn.co/wp-content/uploads/Fighting-Preemption-Local-Minimum-Wage-Laws.pdf.
[xxxiii] Single workers working full-time in Prince George’s County, for example, need an hourly wage of over $20 today to make ends meet. See Economic Policy Institute, Family Budget Calculator, https://www.epi.org/resources/budget/. Single parents with one child in Prince George’s County need even more to do the same. Id.