State and local policymakers should beware preemption clauses

On January 12, 2018, the Maryland legislature successfully overrode Governor Hogan’s veto of a bill granting Maryland workers access to paid sick days across the state. This is great news—it means that nearly 700,000 workers who previously lacked access to paid sick days will no longer have to choose between their health and their paycheck, or even their job. The Maryland legislature’s victory comes after other states, such as Oregon and Rhode Island passed statewide paid sick days laws in in 2015 and 2017.

There is no federal law that provides workers with the right to earn paid leave for sick days or to take time off to care for an ill family member—the federal Family Medical Leave Act simply allows workers to take up to 12 weeks of unpaid leave. In the absence of federal action, with Maryland, nine states have passed paid sick days laws, and five states (and the District of Columbia) have passed paid family leave laws. Local governments, however, have taken up the cause of providing workers with this fundamental need: at least 30 cities and two counties have enacted their own paid leave ordinances in various forms.

But state governments have begun blocking local government efforts to give workers the opportunity to earn paid time off for paid sick days and/or paid family leave through the use of “preemption laws.” “Preemption” in this context refers to a situation in which a state law is enacted to block a local ordinance from taking effect—or dismantle an existing ordinance. The figure below shows that at least 20 states have passed paid leave preemption laws.

Figure A

Paid leave preemption is on the rise: States passing laws preempting local paid leave laws, January 2004–July 2017

Paid leave preemption is on the rise: States passing laws preempting local paid leave laws, January 2004–July 2017

Note: In each column, blue boxes represent paid leave preemption laws passed in the given year. Gray boxes represent fair scheduling preemption laws in effect (passed in previous years).

Source: EPI analysis of preemption laws in all 50 states

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While Maryland, Oregon, and Rhode Island’s paid sick leave laws are an important step forward, they all have something in common: each contains a preemption clause in the fine print. These preemption clauses mean that local governments cannot legislate more generous paid sick and safe leave benefits than the states’ plans going forward.

While preemption of local governments may seem a harmless compromise to get a bill enacted now, these laws can handcuff localities who may need to act to help working people in the future. As our friends at the National Employment Law Project explain in their 2017 minimum wage report, for example, in 2004 Wisconsin Governor Jim Doyle (D) agreed to a preemption clause to prohibit local governments from raising their own minimum wages as a compromise to push the Republican-controlled state legislature to raise the statewide minimum wage. But now, Governor Scott Walker (R) is blocking any statewide increase above the federal minimum of $7.25 that was implemented in 2009, and Wisconsin’s preemption law is preventing cities and counties from acting to raise the minimum wage—like forty other local jurisdictions across the country have.

Progressive state legislators should beware of preemption clauses that are used as bargaining chips or snuck into the text of state bills that are intended to help working people gain a foothold in our economy.