Since San Francisco enacted the first paid sick leave ordinance in 2007, cities and counties across the country have quietly emerged as drivers of the modern labor movement. Local governments are now increasingly playing a pivotal role in developing, enacting, and enforcing workplace regulations ranging from local minimum wage increases to LGBTQ-inclusive nondiscrimination ordinances to fair scheduling requirements. As a result, the question of which level of government should have the power to regulate business and protect workers has become a flash point in contemporary state-local conflicts, inciting state legislatures to adopt far-reaching, sweeping preemption laws that eliminate local authority across a wide swath of labor-related issues, and sparking widespread litigation. Given the rapidly changing legal landscape around preemption, advocates and policymakers must consider a variety of state-specific questions before enacting local workplace regulations, including the structure of the state's home rule authority, whether a local regulation is preempted by state law, and what kind of reception certain local regulations might receive at the state level. Closely examining these local workplace regulatory issues is not only helpful for scholars, advocates, and policymakers, but also sheds light on the larger preemption landscape. This Article, accordingly, will (1) sketch out the important role that modem cities play in developing and enacting local workplace regulations and the state-local conflicts that have emerged in response; (2) frame the primary legal considerations that advocates and policymakers should take into account when pursuing local workplace regulations, using case studies from several states, including Texas, Pennsylvania, and Tennessee; and (3) suggest several promising pathways-such as initiatives like West Virginia's Home Rule Pilot Program and other structural changes to state home rule regimes-for states to modernize their approach to local authority and to empower localities to adopt legislation on labor issues and beyond.
Enacting Local Workplace Regulations in an Era of Preemption,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol122/iss3/10