Protecting Workers: State Sovereignty and Local Policymaking on a National Stage

• In Event: Conflict and Collaboration in Federal Systems

Abstract

In the American federal system, laws affecting employment relations traditionally fall under one of the “police powers” reserved to the States. Recently, States have exercised sovereignty in this area to override and preempt the policy independence of local governments, with the effect of generating political controversy on the national stage. North Carolina’s HB2 bill, passed in 2016, and widely known as the “bathroom bill” for one provision in a much longer law – is a good example. In this case, the State law was enacted largely in response to an ordinance in the City of Charlotte, meant to protect transgender individuals from discrimination. But the law not only cancelled Charlotte’s non-discrimination ordinance protecting gender minorities, it also preempted other locales from adopting policies meant to protect workers’ rights and economic security. A major national controversy resulted that impacted the presidential election, and which led to a reversal of policy in North Carolina.
In this paper, we ask two questions: 1) under what conditions does State-local conflict in employment law emerge, and 2) how and when are reversals of such policies more or less likely? To answer these questions, we focus on policy conflicts in eight States, varied in their political composition and location in presidential elections: Colorado, Pennsylvania, North Carolina and Wisconsin (four “swing states” from different regions); and New York, South Carolina, Texas and Washington (two liberal and two conservative “safe states” from different regions). All of these cases not only involve State-local conflicts. In addition, they manifest complex federalism dynamics in which State and local preferences align with, or deviate from, prevailing federal standards, and the policy conflicts are more or less salient to the “presidential parties.”
We expect that State governments with greater ideological distance from governments in large population centers will enact policies that restrict local policymaking, while State government with closer ideological fit, will permit greater local policymaking authority. In addition, we expect variation in the “negative” consequences following these State actions. In some cases, adverse economic effects may follow the State action, as in the case of North Carolina, where the State as a whole lost business because of boycotts from outside organizations, including sports conferences and other State governments. This outcome is more likely, we argue, when there is strong alignment between the local policy position and intense policy demanders in the social group coalitions of the national parties, and when the conflicts occurs in swing States. Finally, we expect variation in policy reversals to depend in part on the identity of the groups being protected, whether they are religious minorities (including religious conservatives in liberal states), gender minorities (including members of the LGBTQ community), or particular worker groups (public vs. private; professional vs. managerial vs. lower skilled).

Authors

• Michael Callaghan Pisapia, Wake Forest University

• Elizabeth Reni Wemlinger