Employment policies often state that they will be administered in accordance with “applicable federal, state, or local law.” However, when it comes to local law, the second- and third-largest states in the U.S. have acted to put the brakes on locally imposed employment law ordinances. Specifically, both Florida and Texas have taken steps this year to limit municipal ordinances that create additional employment protections for employees above and beyond what is provided by state law.
For example, in June 2023, Florida Governor Ron DeSantis signed SB 170 into law, requiring municipalities to prevent the enforcement of local ordinances that are the subject of litigation challenging the ordinance’s constitutionality on pre-emption grounds. In other words, Florida is directing localities not to wait for a court to make a final ruling or to issue a preliminary injunction temporarily blocking enforcement of such ordinances. Rather, the new law essentially cuts the court out of the process up front, essentially imposing an injunction on such ordinances as soon as a lawsuit challenging their constitutionality is filed.
Additionally, the Florida law requires county commissioners to prepare a “business impact statement” before any proposed ordinance is officially enacted. The stated intent of the law is to prevent the imposition of employment requirements that may prevent the attraction of new business, and the law seeks to ensure that employment requirements remain uniform throughout the state. The new law will take effect on October 1, 2023.
On a similar vein, Texas Governor Greg Abbott signed HB 2127 (the Texas Regulatory Consistency Act) into law in June 2023, barring municipalities from passing regulations that surpass the protections afforded by state law in a number of areas, including labor. The Texas law, which will take effect in September 2023, also creates a private right of action for persons or trade associations to challenge an existing municipal ordinance, which could lead to the eventual overturning of existing laws and regulations that provide additional protections.
It is unclear how aggressive these respective states will be in enforcement of the new laws, and we anticipate challenges may be made to the constitutionality of each. With this in mind, we recommend employers wait to make sweeping changes to their own employment policies in light of either law’s enactment and should remain compliant with established municipal laws and regulations. Additionally, it is worth noting that neither law prevents employers from providing wages or other benefits to employees greater than the floor established by state and/or local law.
We will continue to update you on the enactment — and potential challenges to — similar laws across the country.
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