Florida and Texas recently enacted laws to ensure that state law pre-empts city and county ordinances, including minimum wage and workplace health and safety rules. This will make it easier for employers and individuals to challenge local ordinances in court.
For example, in Dallas and Austin, Texas, construction workers are entitled to a 10-minute rest break for every four hours worked in order to prevent heat illness. Austin also has a local law including gender identity among classes protected from discrimination. St. Petersburg, Fla., and Pinellas County, Fla., have ordinances to prevent wage theft.
“For employers that have employees in multiple cities across the state, complying with these different [local] regulatory requirements can be challenging and impose additional risk of noncompliance,” said Jonathan Rector, an attorney with Littler in Dallas.
Texas Law
On June 14, Texas Gov. Greg Abbott signed the Texas Regulatory Consistency Act, HB 2127, which precludes municipalities and counties from adopting or enforcing an ordinance in certain fields, unless explicitly authorized by law. The fields include labor, occupations, finance, insurance, agriculture, natural resources and civil remedies. The new law is scheduled to take effect on Sept. 1.
On July 3, the city of Houston sued Texas, claiming the new law violates the state constitution. The new law would “repeal Texas constitutional home rule, impermissibly expand the scope of state pre-emption of local law, and improperly shift the burden of disproving pre-emption to cities,” the lawsuit states.
“The Texas Constitution expressly champions the local control and innovation that has been key to the tremendous economic dynamism in cities like Houston. [HB 2127] reverses over 100 years of Texas constitutional law without amending the Constitution,” said Houston Mayor Sylvester Turner.
There may be some leeway for counties and cities to pass rules outside of the fields listed in HB 2127.
“Given its broad language, it is difficult to predict which local ordinances [HB 2127] will invalidate when it takes effect. In the short term, local governments may be less inclined to pass ordinances, fearing the act’s pre-emptive effect,” Greta Ravitsky and Mason Gardner, attorneys with Epstein Becker Green in Houston, wrote in an analysis.
A major goal of the law “is to create uniformity among regulations governing the employment relationship. Employers should now be able to look only to state or federal law on these issues, which will make it easier to implement policies and practices on a statewide basis, rather than having different policies and practices based on the ordinances of a particular city,” Rector said.
This year, “business leaders across the state made it clear that the Texas Regulatory Consistency Act was a legislative priority for them,” he added. “It appears that the Texas Legislature and Governor Abbott agreed there was a need for employers to be able to rely on consistent regulation when it comes to employment practices.”
On Twitter, the Texas AFL-CIO, a group of labor unions, expressed concerns about worker safety, stating, “Banning required rest breaks for construction workers in the Texas heat is deadly.” It called attention to a utility lineman who died of heat stroke in Texas recently.
Florida Law
On June 29, Florida Gov. Ron DeSantis signed SB 170, which requires a county to stop enforcement of an ordinance if it’s the subject of a lawsuit challenging the ordinance’s validity on the grounds that it is pre-empted by the state constitution or state law. A board of county commissioners must prepare a business impact statement before the enactment of a proposed local ordinance. The new law will take effect on Oct. 1.
State legislators introduced the legislation because they were concerned that some county and local policymakers were passing rules that might not be helpful in attracting and retaining businesses in the state, said Charles Caulkins, an attorney with Fisher Phillips in Ft. Lauderdale, Fla.
SB 170 “allows for the collection of attorney fees, if the plaintiff prevails because an ordinance is arbitrary, unreasonable or expressly pre-empted. The bill sets out the legal challenge process, including suspending enforcement, until it works through the judicial process,” Caulkins said.
Going forward, employers should see less variation in rules across the state.
“This legislation should discourage local municipalities from enacting employment-related ordinances different from those in place in state statutes and regulations,” Caulkins said. “This will assure Florida employers that, if they have more than one location in the state, they will not have to be double checking on items like safety laws, minimum wage rates, and other regulations and workplace standards. There will likely be one source for employment regulations laws in Florida: the state of Florida.”
