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Battle Over Water Breaks Latest Front in State-Local Preemption Fight

August 04, 2023 (5 min read)

The weather, of course, is notoriously difficult to predict. But if early projections are to be believed, the cities of Austin and Dallas in Texas are in for some hot days come September.

Both cities are expected to see temperatures in the low 90s and high 80s that month, when a controversial new state law governing water breaks goes into effect.

In June, Texas Gov. Greg Abbott (R) signed into law HB 2127, which preempts any local rules requiring water breaks for construction workers, effectively banning them.

The bill represents one of Texas Republicans’ most aggressive attempts to pull back on progressive policies enacted by the state’s liberal cities.

Both Austin and Dallas had passed local ordinances requiring 10-minute water breaks every four hours for construction workers. But with HB 2127 scheduled to go into effect on September 1, those protections will end just in time for a toasty fall for construction workers in both cities.

Supporters say the bill eliminates a patchwork of local laws that stymie business in the Lone Star State. Opponents say the bill is dangerous, especially given the three straight weeks of triple-digit temperatures Texas faced earlier this year.

Critics have dubbed HB 2127 the “Death Star” because it broadly preempts ordinances at the local level, and Texas’ biggest and bluest cities are fighting back. In July, the city of Houston filed a lawsuit to block implementation of the measure.

“The Texas Constitution expressly champions the local control and innovation that has been key to the tremendous economic dynamism in cities like Houston,” Houston Mayor Sylvester Turner said in a statement released when the lawsuit was filed. “HB 2127 reverses over 100 years of Texas constitutional law without amending the Constitution. Because Texas has long had the means to preempt local laws that conflict with State law, HB 2127 is unnecessary, dismantling the ability to govern at the level closest to the people and therefore punishing all Texas residents. Houston will fight so its residents retain their constitutional rights and have immediate local recourse to government.”

Continuation of Longstanding Power Struggles

HB 2127 is just the latest salvo in a long, ongoing battle between business and labor, a conflict fought seemingly forever in virtually every state capitol and courthouse across the nation.

In that sense, HB 2127 is nothing new. But it has received a fair amount of attention nonetheless, because of the heat wave battering the Southwest and the specifics of Texas’ construction industry, which has seen more workers die from high temperatures and which is composed largely of Latinos.

Through that lens, the bill is considered heartless and discriminatory, while advocates insist it is merely intended to remove unnecessary bureaucracy and red tape, as workplace safety standards are already guaranteed by the federal Occupational Safety and Health Administration.

“While opponents try to disparage this huge win for all Texans by dubbing it the ‘Death Star’ bill, the only thing this ‘super weapon’ destroys is out-of-control local governments’ more interested in quashing growth and prosperity than being a force for good,” said David Dunmoyer, campaign director of the Texas Public Policy Foundation’s Better Tech for Tomorrow initiative, in a video on social media. “Simply put, the bill would first prohibit local governments from creating confusing, inconsistent rules. Second, establishes a uniform regulatory framework for businesses to comply with state law. And finally, slashes redundant and locally instituted red tape.”

It’s true that the Austin and Dallas water break rules could be considered redundant, as OSHA does place the onus squarely on employers to ensure their workers are safe. However, at the same time, OSHA does not have a minimum water break requirement, and the agency, often derided for weak workplace safety protections, typically issues citations for heat overexposure after an injury or death, not proactively, before workers are hurt.

“This is the most dangerous bill,” said Councilwoman Adriana Rocha Garcia of San Antonio, which was considering an ordinance that would have made the city the third in the state to require minimum water breaks for construction workers.

Indeed, since HB 2127 was signed by the governor, at least 13 Texans have died of heat-related complications, underscoring the seriousness of the issue.

Over Half of States Have Preempted Local Employment Laws

Twenty-seven states have laws in effect preempting local employment laws, according to a survey by LexisNexis Practical Guidance. Twenty-four of those states have preempted local minimum wage laws, 23 have preempted local paid leave laws, 11 have preempted scheduling laws and 14 have preempted laws dealing with other forms of compensation and benefits.

Will Other States Follow Texas’ Lead?

So, the question that seems to be on many people’s minds is: Will other red states follow in Texas’ footsteps and make preemption laws like this a national trend?

It’s a big question, with a lot of serious implications for residents across the country, regardless of their home state. But so far at least, it doesn’t appear that it’s something Americans outside of the Lone Star State will have to wrestle with.

That’s because as of now there doesn’t appear to be any evidence other states are interested in taking a path as aggressive as Texas’.

“I’ve not heard any news that other states are considering similar preemption laws, perhaps because it is so draconian,” said lawyer Elias Kahn, senior product manager for labor and employment, tax and employee benefits and executive compensation on the LexisNexis® Practical Guidance team.

Attorney Rodney Miller, also of the practical guidance team, said he hasn’t seen other states pursuing legislation similar to Texas’ either. But he added, “states do periodically use state legislation and argue preemption to prevent cities from enacting ordinances that differ from state laws. For example, minimum wage, parental leave, ride sharing, plastic bags, and antidiscrimination efforts, to name several, have recently been subject matter of city-state disputes.”

Indeed, a survey by the Practical Guidance team found that 23 states have laws preempting local paid leave laws, 11 have preempted local scheduling laws, 24 have preempted local minimum wage laws and 14 have preempted local laws dealing with other forms of compensation and benefits. All told, the survey found that a total of 27 states have such local preemption laws.

Miller said that states—typically conversative-leaning ones with liberal-leaning big cities—have mostly focused their preemption laws on labor and employment matters. But there have also been preemption laws passed that pertain to firearms, COVID restrictions, anti-discrimination laws and curriculum standards.

None, however, have been as draconian as Texas’ “Death Star” bill, Miller said. At least, not yet.

He also said he fully expects the “city-state fight” to continue, “especially where state and city politics differ.”

“This will continue to be a trend in conservative states,” he said.

—By SNCJ Correspondent BRIAN JOSEPH

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