States Limiting Municipal Power to Regulate, Preemption Report Finds

Author: Marta Moakley, XpertHR Legal Editor

February 28, 2017

The National League of Cities (NLC) has released a report that chronicles the limiting of municipal rights to regulate employers by state governments. State preemption of city ordinances has increased over the past several years.

Preemption tends to make regulation more consistent and predictable for employers and employees alike. However, the practice does represent a loss of "home rule" for cities and counties, which may favor different policies for local economies and communities from those that are favored by statewide legislators. Brooks Rainwater, Senior Executive and Director of NLC's Center for City Solutions, states in the report's foreword that "preemption that prevents cities from expanding rights, building stronger economies and promoting innovation can be counterproductive and even dangerous."

Because municipal ordinances often address politically contentious issues, the makeup of the state government often dictates the likelihood and prevalence of preemption. The NLC reports that as of the 2016 election cycle, Republicans comprise unified governments in 25 states, in which the political party controls both legislative chambers and the governor's seat. In contrast, the NLC found that Democrats control a larger portion of city halls.

This dichotomy between "blue" cities in "red" states has spurred both:

  • The groundswell of municipal ordinances enforcing, for example, paid sick leave for employees, minimum wage increases and "ban the box" ordinances; and
  • The corresponding increase in preemption laws in answer to the increased regulation at the municipal level.

Preemption laws vary in scope, ranging from comprehensive local preemption (e.g., Michigan) to laws that restrict the municipal regulation of only one or two legal areas (e.g., Rhode Island). Because the Trump administration favors deregulation at the federal level, the municipal push to expand employee rights, and the resulting reaction from state legislators, should continue for the foreseeable future.