A fight between the state of Alabama and its largest city over which has the right to set a minimum wage made headlines in March highlighting a little noticed trend that is creeping up in the states: state preemption of local law. In recent years, the recycling industry has increasingly faced questions of law on state preemption, with several notable wins in state court.
fact is that as politics becomes more polarized, the states are facing
increasing pressure to act on matters where Congress does not, and as they do
so, localities are rebelling which has forced state legislatures to consider
preempting local law. The Alabama minimum wage case is just the latest instance
that may be reflective of similar struggles over local control that have
quietly occurred across the country in the past few years.
City of Birmingham vs. State of Alabama
The starting gun in the race
between the city of Birmingham and the Alabama
legislature sounded last August when the city council voted to raise the hourly
minimum wage for private employees in Birmingham. When lawmakers returned to the state capital
early this year, they introduced legislation to preempt — essentially block —
Birmingham’s planned wage increase. In response, the council sped up its
ordinance’s timeline and voted to make the planned $10.10 hourly minimum wage
in Birmingham effective immediately. Two days later, the legislature passed,
and Governor Bentley (R) signed, legislation (AL HB 174) blocking Birmingham or any
other local government from enacting its own minimum wage.
A legal challenge is
anticipated, but the state is expected to prevail. Local governments are free
to exercise only the powers granted by the state. Thus, when a
municipality passes an ordinance that conflicts with a state statute on the
same subject matter, the state law preempts (and invalidates) the local
ordinances (unless, of course, the state constitution provides localities with
express authority in the area).
Local Action Generates Confusion for Employers
Minimum wage levels are far
from the only disagreement between state and local governments. For the
recycling industry, materials theft is a prime example of the conflict as are
issues such as recycling rates, plastic/paper bag bans, and solid waste
rules. ISRI has long held that differing
local actions create a confusing patchwork of compliance requirements.
Furthermore, they can create artificial and unfair competitive
advantages/disadvantages based on jurisdictional boundaries, not to mention
interfere with the flow of materials and markets. Industry advocates have
argued increasingly for the need to level the playing field by enacting
statewide law that local government cannot touch, or at least make more
stringent. It has traditionally been a
hard uphill battle, but the tide may be turning.
There is an increasing push
by the business community in general to highlight and seek resolution of the
problematic nature of patchwork laws.
Not only is compliance a problem, but enforcement and even public safety
is being jeopardized. As a result,
states are stepping up efforts to preempt local government from enacting more
restrictive laws, an option that was once deemed not only unattractive but
often completely unattainable without major concessions to large
For instance, ISRI chapter
and state advocates have achieved notable success in recent years with efforts
to obtain state preemption of local materials theft laws. According to the ISRI Materials Theft State Law
are 18 states that have some form of preemption. While some of the preemption provisions are
limited to particular aspects of the law, they all prohibit local government
from enacting conflicting or more restrictive provisions than those in state
law. On employment law matters,
approximately 15 states have taken action to preempt local ordinances that
mandate employer benefits, minimum wages, or both, that exceed state and
federal requirements. Proponents of preemption point to the economic benefits
of keeping a unified and predictable environment for employers throughout the
States Playing Whack-a-Mole
Beyond materials theft and
labor law requirements, localities have passed their own bans on disposable
plastic/paper bags and conflicting solid waste rules among other things. In
response, state lawmakers have had to address each issue and move to block new
local mandates as they surface. It is not the most efficient manner in which to
handle the trend, but at least states are becoming less afraid to support doing
so – at least in public as the Birmingham case might indicate.
The push to eliminate plastic
and paper shopping bags is a great example of the “whack-a-mole” approach in
dealing with instances when local government finds itself increasingly at odds
with the state. For instance, while
Louisiana currently preempts conflicting local laws on materials theft, the
state doesn’t have general preemption rights so it must address preemption for
other matters on a case by case basis.
This year, Louisiana HB192 was introduced to restrict local governments
from adopting ordinances that restrict the use of plastic bags. And this is not
an isolated case. In fact, five other
state legislatures are considering or have approved similar measures, including
local efforts to tax the use of plastic bags or other “auxiliary containers”
(AZ, ID, IN, SC, WI). In each of these cases, all but Idaho have preemption for
Going back to the Alabama
example mentioned earlier, a few years ago ISRI members achieved getting
preemption for materials theft while other important business concerns remained
subject to local authority. For
instance, last year the state passed a preemption bill (AL HB 360) blocking localities from
mandating certain paid employee leave. However, the legislature neglected to
include wage increases in the 2014 legislation, which prompted the quick
passage of this year’s law. And if Birmingham or any other city in the state
decides to pass a predictive scheduling mandate, a plastic bag ban, or any
other ordinance the state dislikes, the legislature will have to act once again
(if it deems these local actions unwarranted).
The Future of Local Preemption
The concept of preemption is
not new and the fact is that states have quietly passed laws preempting local
ordinances for years. However, state
legislators have generally avoided direct conflicts with cities by
grandfathering local ordinances already on the books and passing legislation
before local action had much traction. We see evidence of this, for example, in
numerous states that have carve outs for large cities in the state materials
theft law where it is evident that political pressure from large jurisdictions
prevailed over the state’s goal of uniformity.
It’s not yet clear whether the recent high-profile episode in Alabama
will result in additional attention to local preemption and if that will lead
to a slow-down or embolden state efforts.
Regardless, the increasing introduction of legislation aimed at stopping
local government from moving beyond state law is likely indicative of a
changing tolerance of local rule to some extent. For ISRI members, this can be viewed as a
positive development and hopefully will spark conversation on the potential
opportunities to level the playing field with more consistent state law.