Courts continue to wrestle with preemption issues, the tension between sweeping federal laws purporting to regulate an industry or industries and laws enacted at the local level, such as labor laws impacting labor costs. In the most recent example, the Court of Appeals for the Eleventh Circuit rejected a cargo airline’s argument that the Airline Deregulation Act of 1978’s mandate that states make no law impacting the “price, route or service of an air carrier,” preempts Miami-Date County’s living wage ordinance as applied to such carriers. Amerijet Int’l v. Miami-Dade County, 2015 U.S. App. LEXIS 16700 (11th Cir. 2015).

The ordinance – one of the first of its kind, originally passed in 1999 – currently requires that “certain individuals or entities that conduct business with the County or that use the facilities of Miami International Airport” pay a “living wage” to workers providing “covered services,” which specifically includes a number of essential airport operations functions:

Guiding aircraft in and out of Airport; aircraft loading and unloading positions, designated by the Aviation Department; placing in position and operating passenger, baggage and cargo loading and unloading devices, as required for the safe and efficient loading and unloading of passengers, baggage and cargo to and from aircraft; performing such loading and unloading; providing aircraft utility services, such as air start and cabin air; fueling; catering; towing aircraft; cleaning of aircraft; delivering cargo, baggage and mail to and from aircraft to and from locations at any Miami-Dade County Aviation Department facility; and providing such other ramp services approved in writing by the Aviation Department.

Id. at * 2-3 quoting MIAMI-DADE CODE OF ORDINANCESch. 2, art. I, § 2-8.9(f)(2)(A).

The living wage required by the ordinance is currently $14.27 (slightly lower if benefits are provided), some $6.22 above Florida’s minimum wage of $8.05. Plaintiff urged that application of the ordinance to its cargo handling services was preempted as an inappropriate attempt by the county to regulate the preempted field of air carrier regulation. The Eleventh Circuit demurred, finding that the ordinance was a law of general application (not specific to the airline industry), and that ADA preemption extended only to the “elements of air travel that are bargained for by passengers [or shippers] with air carriers.” The ancillary services of a subcontractor, in the Court’s view, did not meet this standard or otherwise come under the preemption doctrine.

Laws setting a higher wage floor in a specific jurisdiction (such as a state, county or municipality) or industry, such as New York’s new rules for fast food workers, will continue to spark controversy and litigation. Employers must analyze preemption arguments in developing compliance strategies.