Dear America: We Need to Talk About the Dangers of State Preemption
Austin ranks the worst for minimum wage earners — does that surprise you? It should, but not for the reason you first might think.
Frenchie is a Texas native that never went to college; after he graduated high school he headed north to Austin to pursue a lifelong dream of playing music. “I’m just like every other musician here; we all work in the service industry. Because it’s easier to get off work, the hours are a little looser — there are some benefits to it, but the money’s not one of them.”
If I told you that Austin, the famously progressive city in the heart of Texas, ranks the worst for minimum wage earners — $7.25 an hour to be exact — would that surprise you? It should, but maybe not for the reason you might first think. Austin isn’t nefarious — it hasn’t gone out of its way to set a minimum wage far below what people can live on — Texas has simply stopped Austin from doing any better.
This phenomenon is called preemption.
Writ large, preemption occurs when a higher level of government passes a law that overrides authority at a lower level; the federal government can trump the state and the state can trump its cities — you get the idea.
Preemption can be helpful when states need to establish a floor for basic standards like workplace safety or minimum wage for example. But over the past decade, many states have been ideologically driven to use preemption as a ceiling to stop cities from doing more for working people than the state does (which often isn’t much).
Half of the states in the U.S. preempt cities from enacting higher minimum wage than the state standard, which has led to at least 10 local minimum wage laws being overturned aimed at paying working people a more significant compensation.
In addition, twenty-two states preempt local governments from requiring companies to provide paid sick leave: that means in a state like Texas, not only does the state refuse to require companies to give people paid sick leave, but the state also prevents cities with good intentions (like Austin) from stepping in to fill the gap.
Preemption leaves working people with no help from any level of government.
“I worked in the service industry for 16, 17 years,” Frenchie says. “Back then I was making $14,000 a year working at a bunch of different restaurants. My rent was so low — something like $250 a month for an apartment shared with friends — that you could afford living like that, being paid about $7 an hour plus tips. You could sustain that.
“But lately? In the past five, eight years, with people moving here the rents just went through the roof and my wage doesn’t go up at all. Now for a two-bedroom apartment, my room is 800 bucks. I worked at this one sandwich place for about 10 years, from like 2008–2019. I think I started out making about $6.50 and by the time I left, I was making $12.50 — that was my last wage.
“When I quit that job and tried to get another one, they said OK, ‘we’re gonna start you out being just the grunt, and you’ll get paid the minimum.’ You have to start all over.’ I’m tired of being treated like crap and tired of standing up all day. Not only do you not get paid that much, but then you have to clean everything, do all this manual labor — you’re standing up 10 hours a day. It gets taxing and exhausting on your body, too. And you don’t get paid enough to do that.
“I’m going back to school for graphic design. That’s what it forced me to do,” which, Frenchie says, is an opportunity he is thankful for, but one only made possible by the support of his parents, a resource and safety net he recognizes not everybody has.
States have come up with a litany of reasons for why it makes sense to preempt local governments from enacting policies that would help working people. Mainly, they argue that a patchwork of minimum wage or paid sick leave laws in different cities across the state would be confusing for big companies that operate in multiple cities.
But there is little to no evidence to back this up.
In an investigation of the “patchwork” effect over 10 different policy areas, including minimum wage, paid sick leave, and anti-discrimination policies, the Urban Institute found that:
“…little evidence exists, either in policy debates or academic research, that a patchwork of local laws harms businesses, residents, and consumers.” When proponents of preemption provide examples, their arguments are generally arguments about the harm of the regulation itself.”
In other words, states abusing preemption don’t really care about the consistency of employment laws; they care about keeping wages and entitlements to a minimum.
What real evidence shows is that working people bear the costs when they aren’t guaranteed a living wage and basic protections.
MIT’s living wage calculation for Austin County for a single man with no children is $13.63, nearly double that of its minimum wage; $7.25 is one dollar higher than the poverty wage.
It seems states’ sympathy evaporates when it comes to human hardships— rather than businesses’ interests across the state.
“Once I started going to school, my parents started helping me, but before that? Whatever it was, I just had to deal with it. And I mean, I’m single. If you have a family, it’s not sustainable. You’re kind of screwed if you’re out here trying to pay rent for a house or anything like that on minimum wage.”
State preemption is the sneaky enemy of workers’ rights. It doesn’t make for a catchy slogan like “Fight for $15,” but it effectively negates that battle before it’s even begun.
So how do working people and advocates begin to fight back?
The first step is naming the problem. State preemption is a vital workers’ rights issue that gets buried in esoteric law-making, but its impact rivals that of minimum wage or paid sick leave. We must call attention to it, and stand up for progressive cities who refuse to sideline or systematically sabotage workers’ rights for corporate greed.
