Preemption is a popular topic these days, as local labor laws continue to increase and change at a fast rate. However, as state preemption laws increase, so does the confusion surrounding it.

What is preemption?

Preemption refers to a higher level of government having authority to limit or eliminate the power of a lower level of government to regulate a certain issue. For example, if a local law conflicts with a state preemption law, the state law takes precedence over the lower-level, local law.

There are two types of preemption: Express and Implied.

Express Preemption

First, express preemption occurs when a law specifically states it’s preempting a lower-level law or law-making authority.

There are two types of express preemption:

1. Full Preemption, where higher levels of government choose to supersede all local level powers over workplace laws
2. Selective Preemption, where higher levels of government choose to supersede a limited subset of local level workplace laws (like minimum wage, sick leave or benefits)

Implied Preemption

This occurs when a federal or state law does not contain any preemptive language, but still has the power to invalidate the lower-level law.

History of Preemption

Preemption is a relatively new occurrence in labor laws, as it gained popularity in 2011 when the American Legislative Exchange Council (ALEC) released templates for preemption laws regarding paid sick leave. Since then, many states have followed these templates and passed their own preemption laws.

At first, states were using the ALEC template to preempt county and city minimum wage laws. However, now that local jurisdictions are more progressive regarding workplace laws, preemption laws have expanded to other areas, such as paid sick leave and employment conditions.

To learn more, check out our Labor Law Preemption Guide, where we explore:

• A deeper dive into the definition of preemption and its types
• Current preemption trends
• States with preemption laws