Earlier this fall, I reported in this video how the Kentucky Supreme Court struck down Louisville’s minimum wage ordinance. Cleveland has likewise enacted a minimum wage that exceeds state or federal requirements, the subject of a pending 2017 special election, and there is a bill pending in the Ohio General Assembly to strike down Cleveland’s law. A quick search of BT Currents shows the increasing level of municipal employment law activity. This trend seems likely to only continue, as we enter an era likely to feature less federal regulation coupled with metropolitan areas where governments are expected to be very pro-employee. The question of a municipality’s freedom to write its own rules in the context of its particular state’s laws and constitutions will be a continuing theme.
As I said in the video, this trend means as least three things for employers:
- Employers need to be aware of what’s going on where they do business. Even relatively small employers may be subject to different municipal laws. Employers need to consider having a system in place to ensure they do not miss developments. This can be tricky for employers with small presences (e.g. one or two sales people) in numerous locations.
- Businesses that are not involved in government advocacy and building relationships with elected and other government officials may want to consider doing so. Employers may be able to influence things at a local level in a way they feel they cannot at a federal level.
- Practically speaking, this raises strategic questions as to how draft policies and handbooks to best capture different rules. Do you draft a handbook that simply complies with the most demanding rules to which you are subject? Do you have local supplements? Or can you address the issue of varying state and local laws with language like “except as provided by applicable law” in more general policies? There is no one right answer, but employers should consider discussing this issue with counsel as they continue to monitor localized developments.