By Steve Wishnia

Michigan has repealed its 2012 law banning the union shop and restored prevailing-wage requirements for public construction projects. But Texas is considering a bill that would void local labor laws that are stronger than the state’s, such as those in Austin, Dallas, and San Antonio that employers must give construction workers 10-minute water breaks every four hours.

“It was a loud, double-barreled shot heard in both of Michigan’s peninsulas,” Marty Mulcahy, editor of The Building Tradesman, the Michigan Building and Construction Trades Council’s official publication, wrote March 24.

“The repeal of Michigan’s decade-old right-to-work law is a victory for labor unions in the state, and marks a return to basic workplace fairness,” Mulcahy told Work-Bites. “Why should workers in a bargaining unit who choose not to pay union dues get to enjoy the benefits of a collectively bargained contract? Right-to-work laws are aimed squarely at reducing or eliminating the power and influence of unions and working people.”

Texas, however, is moving in the opposite direction. A bill pending in the state legislature would establish a “field pre-emption” that would void local regulations affecting agriculture, business and commerce, finance, insurance, labor, natural resources, occupations, or property unless they are “explicitly authorized” by state law.

The Texas Regulatory Consistency Act, sponsored by Rep. Dustin Burrows (R-Lubbock), is intended to eliminate a “patchwork of regulations” by returning “exclusive regulatory powers to the state.” Currently, Texas towns and cities with more than 5,000 people can enact ordinances as long as they’re not expressly forbidden by state or federal law.

“Ten years ago, the idea that cities were going to have Green New Deal legislation or pro-labor legislation was unheard of and unthinkable,” Burrows told an interviewer from the far-right Texas Public Policy Foundation Mar. 15.

Opponents call the bill the “Death Star.” “The measure nukes local governance,” the state AFL-CIO said in February.

A big problem “is that this bill is so broad,” Emily Amps, the Texas AFL-CIO’s director of politics and policy, told Work-Bites. So broad, she says, that people don’t know exactly what it would cover. It would definitely void the local rest-break laws, kill the paid sick-leave mandates blocked by state courts in 2020, and pre-empt any attempt to require employers to give workers predictable schedules.

The bill might also wipe out laws against wage theft in Austin, El Paso, and Houston, Amps says — and also more than 40 local limits on predatory lending, as that’s covered by the state finance code. It probably won’t prevent local governments from requiring contractors to pay workers more than the state’s $7.25 an hour minimum wage, but it might. And while there are federal protections against discrimination, some local laws may go beyond them, so that’s “still a big question mark.”

The only thing certain, Amps says, is that it will provoke much litigation. That’s “how we will know what the bill does or does not do.”

A coalition of business groups backing the bill say it’s a myth that the measure “will lead to dangerous working conditions, particularly for construction workers who need rest/water breaks because of the heat,” because the federal Occupational Safety and Health Administration “has very detailed regulations… that Texas employers must continue to follow.”

The entire state of Texas, however, only had 99 OSHA inspectors in 2021, the national AFL-CIO’s annual “Death on the Job” report noted.

The bill is likely to pass the House, as Rep. Burrows is chair of the Calendars Committee, which schedules floor votes. Gov. Greg Abbott has said he will sign it. “This will protect capitalism and prevent local policies that are hostile to businesses,” he told the Texas Public Policy Foundation March 1.

“The bigger question is what it will look like when it passes,” says Amps. The House State Affairs Committee has already expanded the bill’s scope to include business and commerce and property. It also limited lawsuits challenging regulations to plaintiffs who had suffered an “actual or threatened” injury, deleting an anyone-can-sue provision.

The bill won’t affect local prevailing-wage requirements, Amps says, but other measures have been introduced that would.

Michigan revives prevailing wage

Michigan also restored its laws requiring contractors on public construction projects to pay prevailing wage. Gov. Whitmer issued an executive order in 2021 mandating prevailing wage on state projects, but the new law also covers local projects.

“Prevailing-wage laws remove the ability of unscrupulous contractors to win bids on publicly funded construction contracts by hiring lower-paid, often out-of-area workers,” Marty Mulcahy told Work-Bites.

Michigan repealed its old prevailing-wage law in 2018 after a trade group of nonunion construction builders and contractors got a repeal initiative on the state ballot, and the Legislature, then under Republican control, enacted it.

The union-shop ban was pushed through without hearings in a lame-duck session in December 2012. The GOP had lost five House seats in the November election, meaning defections by Republicans from districts with union members would have likely doomed the bill in the next session.

The union share of Michigan’s workforce fell from 16.3% to 13.3% while the ban was in effect.

Its repeal erases part of the wave of anti-labor laws that swept the Midwest in the 2010s, which began with Wisconsin Gov. Scott Walker’s draconian restrictions on public-sector unions in 2011 and resulted in Indiana, Wisconsin, West Virginia, and Kentucky also enacting “right to work for less” laws. (The Missouri legislature passed one in 2017, but the state’s voters repealed it before it could go into effect.)

Pre-emption has been one of the national far-right’s main tactics for suppressing local laws for more than a decade. Currently, 26 states prohibit local governments from enacting a higher minimum wage than the state’s, and 23 bar them from requiring employers to give workers paid sick leave. The American Legislative Exchange Council has had a model minimum-wage pre-emption law since 1996.

The conflict, however, is less one of “blue states vs. red states” than of red-state governments clamping down on urban areas, which are usually more liberal, more likely to have black and/or Latino majorities, and generally have larger gay and lesbian populations. Ohio and Alabama enacted their minimum-wage pre-emptions in 2016 specifically to stop Cleveland and Birmingham from setting higher local minimums.

“Some of the same advocates that come to the Legislature with their agendas – that are not able to get it through here at the state Capitol – have now gone to some of our cities, more progressive cities, and have those adopted,” Rep. Burrows told the Mar. 15 hearing.

The bill “ignores the will of local people,” Amps responds. Local city councils, she adds, meet year-round — unlike the state legislature, which generally meets only every other year.

Texas’s minimum-wage pre-emption law has been on the books since 2003, and the state’s minimum has not been raised since 2009. As of 2020, the average rent in the Austin area had gone up by about 60% since then, according to a study by the federal Department of Housing and Urban Development.