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Arizona Blocked Cities’ Right To Give Workers Paid Sick Leave. Now Cities Are Fighting Back.

CREDIT: FLICKR/ALDON HYNES
CREDIT: FLICKR/ALDON HYNES

Making sure that all residents of Tempe, Arizona get a paid day off if they or their families get sick was one of the first things Lauren Kuby got to work on when she first became a city council member a little more than a year ago.

“I was approached by a group of citizens and small business owners and people in public health to look at paid sick leave,” she said. So the city council rolled up their sleeves and got to work on the issue, holding a number of stakeholder meetings and studying best practices learned from the huge number of other cities across the country that have already passed such laws.

But before they were able to put what they learned into action, the state government took notice.

“We were looking at this very seriously,” Kuby said. “And then the state stepped in with a number of bills interfering with the city’s right to legislate.”

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The Arizona legislature approved two different bills earlier this year that have completely disbanded Tempe’s efforts: a bill preempting any city or county’s ability to pass laws mandating paid sick leave benefits, and another that allows the state to withhold revenue sharing funds from a city or county that passes a law that the attorney general deems contrary to state statutes. The latter law could potentially be used to punish any place that enacts more generous wage or benefit rules.

Given that state revenue sharing funds make up about a quarter of Tempe’s general budget, “That was a very scary thing,” Kuby said.

Her city council’s progress toward passing a paid sick leave requirement has now been halted and the study groups disbanded. But Kuby and other state lawmakers aren’t taking the state’s intrusion into their lawmaking process sitting down. She and four other council members across three Arizona cities, as well as 32 state lawmakers, have filed a lawsuit challenging the constitutionality of the new ban on paid leave laws.http://thinkprogress.org/economy/2016/06/16/3788376/preemption-laws/ The group claims that the state legislature has run afoul of two different laws that should protect cities’ and counties’ ability to pass their own legislation: a provision in the state constitution that gives them rights to legislate free of interference on matters of local concern about general welfare, and a ballot initiative that passed in 2006 that granted local authority to pass minimum wage and benefit bills. The latter measure also has the backing of the state’s Voter Protection Act, which only allows the state to change voter-approved laws with three-quarters of the legislature and only if it improves the old law.

“We are entitled under the Arizona constitution to legislate in areas that promote the general welfare of our citizens, and we felt sick days was one of those issues,” Kuby said. “We felt we had no options except to bring them to court and challenge them on the basis that the law violates the Arizona constitution.”

The lawsuit in Arizona is only the latest example of cities fighting back against preemption legislation, which has now been passed in 20 states across the country. After Alabama lawmakers passed a bill banning local minimum wage hikes, effectively blocking one that had just gone into effect in Birmingham, workers in the city and civil rights organizations filed a lawsuit arguing that the law violated the Constitution’s equal protection clause and was loaded with “racial animus” given that the city is majority black. North Carolina has landed itself in the middle of a legal storm over HB2, a bill that blocked local minimum wage and sick leave laws as well as anti-discrimination protections and the ability of transgender people to use the bathrooms that correspond to their genders.

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It’s possible that Arizona’s attorney general, Mark Brnovich, could end up siding with Kuby and the other plaintiffs. Last year, the Flagstaff Fair Wage Coalition sued the state over a 2013 law that blocks cities from increasing minimum wages, arguing that the city had a local interest in doing just that. Brnovich didn’t fight the plaintiffs, given that the 2006 voter-approved law trumped the 2013 legislation. “The very same legal arguments apply to paid sick days as apply to wages,” Kuby argued.

They’re trying to quash the independence of cities.

It’s still possible, however, that he’ll file a counter motion to dismiss the case. If so, it could all drag on for a number of months.

Residents of Tempe could still wind up with a paid sick leave guarantee in the meantime. It now looks likely that a ballot initiative is going to put the issue of paid sick leave directly in front of all Arizona voters, as well as a $12 minimum wage. But even if that were to be approved, Kuby thinks fighting the state’s preemption laws is important.

“As a public policy maker, I think it’s better to start at the city level,” she said. “We can change an ordinance in a month’s time. We’re flexible, we listen to feedback and change.” The state, on the other hand, only holds one session a year, so any tweaks grind on at a much slower pace. And even if voters approve a $12 minimum wage, she said it’s possible that Tempe or another city in the state might want to go higher. “We want to have the freedom to raise it slightly more for our community if we think our community merits that. So it’s essential,” she said.

She also sees a larger significance in the fight beyond Arizona. Preemption laws trace back to an effort that originated with the American Legislative Exchange Council (ALEC), a group of business interests and conservative lawmakers, which disseminates model legislation that tamps down on the proliferation of local efforts to increase wages and benefits. Big business groups have an easier time targeting state legislatures than going after every effort that crops up at the local level.

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“Corporate interests are trying to dictate local values,” she said. “They’re trying to quash the independence of cities.”