While some states are taking action to bar cities and local governments from regulating the workplace, cities and counties appear to be countering that effort by implementing innovative worker protections.

Over the past several years, more than 20 states have enacted preemption laws that prevent such localities from increasing the minimum wage, expanding anti-discrimination protections, requiring employers to provide paid sick leave, and regulating employee meal breaks and rest periods. In many instances, it appears that these state laws are a direct response to local efforts to pass worker-friendly ordinances that would provide benefits above and beyond that which is required by state or federal law. 

Perhaps the most high-profile example of this phenomenon is Alabama, which in 2016 passed a preemption law preventing any city in the state from increasing the minimum wage – just months after Birmingham City Council passed such an ordinance. However, these state efforts are not going unchallenged. In addition to increasing political backlash, these preemption laws are being challenged in court. For instance, the Alabama preemption law is currently the subject of a federal lawsuit commenced by organizations including the Alabama NAACP.

Meanwhile, in the majority of states that have not pursued the preemption strategy, many local governments are enacting innovative workplace laws. For example, earlier this month the New York City Council passed a bill that prohibits employers from asking about job applicants’ salary history and/or relying on applicants’ salary history when determining their salary. The legislation is designed to combat the gender pay gap, although it applies to all job applicants, and was passed just a day after Equal Pay Day. Notably, the bill does not restrict employers from asking applicants about their expectations with respect to salary and/or benefits, and the law would also not apply to internal promotions and/or transfers with a current employer. The legislation is widely expected to be signed into law by Mayor de Blasio, who has already issued an executive order that bans such questions to applicants seeking public-sector employment.

If enacted, New York City will join Massachusetts, Puerto Rico, and Philadelphia in prohibiting such inquiries. We expect to see similar legislation spread to additional jurisdictions in the near future; for instance, California is currently considering such a bill. We also expect to see local governments – at least those in states without preemption laws – continue to expand their role in regulating the workplace.

Given these conflicts between state and local governments, employers are encouraged to reach out to counsel to ensure they are up-to-date and compliant with the ever-changing landscape of employment law.