Preemption is Blocking Family-Support Policies That Our Nation Needs

In spite of the benefits to families and businesses, many states have shut down sorely needed local policies such as paid leave and minimum wage increases.

This is the final post in a series that explores the double-edged sword of preemption. Here we examine how states have used preemption to impede local decision-making on popular, family-supporting, evidence-based policies.

Paid leave and a living wage are tremendously popular public policies proven to advance health equity for working people, families, and businesses. Yet why do millions in states across the nation lack access to these policies? One reason: preemption, which continues to be used to block progress time and again. 

Paid leave provides undeniable short- and long-term benefits for families including more time to bond with a new child, which is key to healthy development; reduced infant hospitalizations and lower infant mortality rates, particularly in households with lower incomes; and improved rates of on-time vaccinations, with the strongest impact on families below the poverty line. 

Research demonstrates that family-support policies also benefit business. A 2018 study revealed the financial return on investment and productivity gains of paid leave for companies across a range of industries and sectors. A 2021 study shows that employers’ perceptions of public paid leave programs improved during the pandemic. Paid family and medical leave can help businesses reduce costs and level the playing field for employers of all sizes while providing workers with needed flexibility to keep their jobs while meeting their health needs and caregiving responsibilities.

Paid sick time and paid family and medical leave are also proven to reduce workplace contagion, emergency department visits, workplace injuries, financial burdens and are associated with lower mortality.

Increasing the minimum wage is another important way to support the health and wellbeing of low-wage workers and their families who are disproportionately women and people of color.

During the pandemic, states with higher minimum wages saw faster economic recovery and more job growth. Increasing the minimum wage can improve employee retention, boost worker performance, stimulate consumer spending and improve employee health.

Paid leave and minimum wage policies are overwhelmingly popular across party lines and demographics. Support for paid family leave policies also jumped from 60 percent to 70 percent during the pandemic among small businesses in New York and New Jersey.

Barriers to Progress

In spite of numerous benefits, many states halted sorely needed local policies such as paid leave and minimum wage increases.

Using preemption, as many as 23 states have stopped local governments from enacting their own paid leave or paid sick time policies, and 27 states have barred local authorities from increasing the minimum wage. Preempting family-supporting policies exacerbates racial inequities by disproportionately impacting workers of color who are overrepresented among low-wage workers and who often represent majorities in large metropolitan areas.

How Did We Get Here?

Around the mid-2000s, local advocates began making progress in getting county and city governments to pass paid sick day laws. Soon after, however, some governors and state legislatures pushed back. For instance, in 2008, Milwaukee voters overwhelmingly approved a paid sick leave mandate. Yet three years later, then-Gov. Scott Walker struck it down, signing a preemption bill championed by the conservative American Legislative Exchange Council (ALEC) as a model for other states.

In 2018, Austin, Texas passed a paid leave ordinance requiring private businesses to provide paid leave for up to eight calendar days per year—leave employees accrued over time. However later that year, a Texas appeals court ruled that the ordinance violated the Texas Minimum Wage Act, which prohibits municipalities from regulating private employee wages. When the city of Austin attempted to appeal the decision, the Texas Supreme Court declined to hear the case.

Some governors and state legislatures have attacked laws that would raise the minimum wage as well. A dozen or so cities and counties in six states have approved minimum wage laws only to see them invalidated by state governments. In Wisconsin, after the city of Madison raised its minimum wage, the cities of Eau Claire, La Crosse and Milwaukee took steps to follow suit. But then-Gov. Jim Doyle signed a bill prohibiting local governments from raising minimum wage beyond the state’s minimum. A similar situation played out in North Dakota in 2019, when Gov. Doug Burgum signed into law a preemptive minimum wage ceiling of $7.25 per hour.

What Needs to Change

The recently enacted Inflation Reduction Act left women and children behind; it didn’t include a national paid leave program or increase the federal minimum wage. Congress has repeatedly declined to take action on paid sick days, including failing to renew emergency paid sick leave specific to COVID-19. The Pregnant Workers Fairness Act was passed by the U.S. House of Representatives more than a year ago with overwhelming bipartisan support. It would establish a right to reasonable accommodations for pregnant workers, but it is languishing in the Senate.

Succeeding in achieving paid leave and a living wage requires community mobilization. For example, in the District of Columbia, businesses, community organizations and nonprofits advocated in support of universal paid leave for years. This perseverance finally paid off in 2016 when the city council passed a law providing eight weeks of paid leave to new parents, six weeks of leave for other family caregiving, and two weeks of leave for a personal health issue, to virtually all private-sector and nonprofit workers in D.C., affecting more than 500,000 workers and their families. The law has been expanded twice, and beginning October 1, all workers in D.C. will be able to take 12 weeks of paid family and medical leave.

In states that have preempted family-supporting laws, local governments can advance these policies by convincing large employers of the benefits to business, workers, and the community. Given the popularity of these policies and the tight labor market in many places, some employers may be open to raising wages and offering paid leave. Labor organizations, states, and local jurisdictions can also improve wages and benefits through project labor agreements. These agreements only apply to workers on a particular project, but they could establish standards that produce ripple effects throughout organizations and industries.

We must demand that our government help all working families gain economic security and opportunity. This means, at the very least, paid leave and a living wage. As with so many other issues, strong, persistent advocacy backed by evidence can help advance paid leave and minimum wage policies that support health equity.

About the Authors

Vicki Shabo is a leading expert on gender equity and work. At New America, she focuses on charting a path to winning paid family and medical leave for every working person in the United States, no matter where they live or work or the job they hold.

Mona Shah is a senior program officer in the Research-Evaluation-Learning unit, involved in the process of understanding and measuring key health and healthcare issues essential to the Foundation’s overarching strategy to move our nation toward a Culture of Health.