The Rise of Preemption

The fight over paid sick leave goes back decades. Proponents of paid sick leave, like the National Partnership for Women and Families and the nonprofit Center for Law and Social Policy, point to studies indicating that paid sick leave leads to healthier, more productive workplaces. Moreover, they argue, preemption laws are inherently anti-democratic since they prevent self-governance.

Preemption advocates argue that laws restricting paid sick leave mandates are necessary to maintain a reliable flow of business and protect jobs and employers. On his website, Grove advertises his support for preemption on these grounds.

“Pennsylvania has the second highest number of local government entities in the United States,” his site reads. “If each one had their own local labor laws, it would be impossible for businesses to operate in Pennsylvania and comply with over 2,000 different laws…. Local governments should be focused on public safety, infrastructure, zoning and recreation, not socialist policies meant to harm the free market.”

Preemption laws are an increasingly popular tool among corporate-friendly lawmakers and business lobby groups to combat a surge of progressive grassroots activism at the local level. Their application spans multiple issues. Preemption laws have been used to block local gun regulations, minimum wage hikes, and bans on fracking and plastic bags. Thirty-eight states, including California, have preempted localities from regulating the gig economy — specifically stipulating that certain kinds of workers must be considered independent contractors, so they don’t receive protections guaranteed to employees.

In 2004, Georgia was the first state in the country to adopt a paid sick leave preemption law — and remained the only state to have such a law on the books for many years. That situation changed with the 2010 midterms.

That year, the GOP flipped twenty state legislative chambers, bringing a total of fifty-three under its control. Because those gains happened in a census year, before the once-a-decade redistricting process, the party was able to build up its advantage in subsequent elections. By 2017, Republicans controlled more than 80 percent of the state legislative chambers nationwide.

The impact on employee safeguards has been staggering. Only six states and DC currently have no laws preempting worker rights in some way.

This trend has left workers largely at the mercy of their employers. A stunning 25 percent of private industry workers have no access to paid sick leave, according to the US Bureau of Labor Statistics. Unsurprisingly, the highest proportion of affected workers are low-wage earners. Sixty-seven percent of earners in the lowest-wage segment do not have access to paid sick leave, compared to five percent in the highest-wage segment.

As the Urban Institute pointed out in an October 2020 report, there was a 2012 push for paid sick leave by Democratic Party leaders and local advocates in Orange County, Florida, after it was identified that 45 percent of workers in the county did not have access to paid sick leave. The Latinx community was disproportionately affected, with 56 percent lacking such benefits through their employers — and that number rose to 73 percent for Latinx workers in the hospitality industry.

However, the sick leave effort was ultimately unsuccessful, with corporate lobbyists pouring money into the fight and stalling the ballot measure long enough for the state to pass a preemption statute.

Today, many Orange County workers — including a sizable contingent of its Latinx workforce — face the pandemic without the protection of paid leave.

Much of the preemption push has been led by the American Legislative Exchange Council (ALEC), a well-known industry organization made up of corporate lobbyists and about a quarter of all state lawmakers. Grove himself is ALEC’s Pennsylvania chair.

ALEC is known for distributing so-called model bills around the country and getting them enacted into law. After Wisconsin’s newly elected Republican governor, Scott Walker, signed a paid sick leave preemption bill in 2011 — a move targeted at Milwaukee, the only city in his state to mandate paid sick leave — ALEC used the legislation as one of its model bills.

Grassroots Momentum for Paid Sick Leave

The efforts to enact paid sick leave preemption laws have been remarkably successful. In total, twenty-three states now have such statutes, and other states like North Dakota are considering them. Still, grassroots momentum for paid sick leave remains strong and the momentum favors greater worker protections.

In 2006, San Francisco became the first US city to mandate paid sick leave. Since then, many other localities have followed its example. By 2018, thirty-five cities or counties and eleven states had paid sick leave laws on the books — up from twenty-five the year before.

With the expiration of the federal paid sick leave mandate, the Virginia and New Mexico state legislatures are each considering enacting paid sick leave laws. Meanwhile, in Florida, Democratic lawmakers have introduced legislation to restore the ability of local governments to enact paid sick leave.

Pressing their advantage from their court victories on paid sick leave, Democrats in Pennsylvania have sought to roll back preemption laws against local minimum wage hikes.

But while these battles wage, the pandemic rages on and many elected leaders remain unwilling to lock down. As of this month, more than 463,000 Americans have died from COVID.

Uncontrolled viral spread is fostering the evolution of new strains of the virus since every new infection is an opportunity to mutate. These new strains may be responsible for reinfections and vaccine resistance is emerging.

Policies like paid sick leave, which would keep people home, could prove essential to coming out on the other side of the pandemic.