The Anti-Subordination Principle of Labor Preemption
Catherine L. Fisk, The Anti-Subordination Principle of Labor Preemption, 5 Harv. L. & Pol'y Rev. 17 (2011).
This article, part of a symposium on Jobs and the American Worker, assesses the preemption challenges to the efforts of cities and states to induce employers to create good jobs that pay adequate wage and provide adequate health care, retirement, and unemployment insurance. Local governments want employers to internalize these social welfare costs so that the government’s social welfare system does not have to bear them. Part I of this Essay examines a small sample of the variety of local labor initiatives recently enacted in Southern California and the organizing that led to them. After briefly explaining the law of preemption in the labor and employment field, it provides the factual context to understand the need for a new approach to labor and employment law preemption. In particular, it shows that local governments in California trying to legislate bad jobs into good ones have found a need for greater employee protection in the low-wage labor market than is offered by federal law. It examines some of the many local labor initiatives that federal courts have held to be preempted, as well as some that have either not been challenged or have survived preemption challenges. Part II describes the preemption challenges to these and similar labor initiatives. Part III offers an anti-subordination theory of regulatory federalism that strikes a better balance than current law between the values of local regulation and the values of national uniformity. To the extent that mid-twentieth century arguments about the desirability of federal regulation were based on the idea that municipal governments were too politically disorganized and too much at risk of capital flight to regulate effectively to protect labor or redistribute wealth, scholars have lately begun to doubt the received wisdom and have found resurgent regulatory localism. The anti-subordination principle of labor preemption means that federal protective labor laws almost invariably contemplate local laws that provide greater protection, better enforcement, or better remedies. The anti-subordination principle also means that federal immigration regulation does preempt local legislation that has the purpose of regulating migration by making unauthorized migrant workers a permanently extra-legal underclass. Thus, when sub-national laws regulate immigrant labor qua labor, they are valid on the same terms as local regulation of any other type of labor: there is no preemption of local laws that treat workers better than federal law. But when local laws regulate immigrant labor as a means of deterring or punishing cross-border migration, they are preempted by federal laws imposing minimum labor standards or regulating the employment of unauthorized migrants.