ABSTRACT: The preemption regime grounded in the National Labor Relations Act (NLRA) is understood to preclude state and local innovation in the field of labor law. Yet preemption doctrine has not put an end to state and local labor lawmaking. While preemption has eliminated traditional forms of labor law in cities and states, it has not prevented state and local reconstruction of the NLRA’s rules through what this Article terms “tripartite lawmaking.” The dynamic of tripartite lawmaking occurs when government actions in areas of law unrelated to labor — but of significant interest to employers — are exchanged for private agreements through which unions and employers reorder the rules of union organizing and bargaining. These tripartite political exchanges produce organizing and bargaining rules that are markedly different from the ones the federal statute provides but that are nonetheless fully enforceable as a matter of federal law.
Professor Benjamin I. Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations.
- Benjamin I. Sachs. Despite Preemption: Making Labor Law in Cities and States, 124 Harv. L. Rev, 1153 (2011).
Published in 2007 by Jennifer Brand, the article presents a detailed plan for state attorneys general to enhance enforcement of state wage and hour laws. Ms. Brand currently serves as the Associate Solicitor of Fair Labor Standards at the U.S. Department of Labor. She previously served as Labor Bureau Chief for the New York Attorney General's Office. Ms. Brand wrote this article as a Research Scholar for the National State Attorneys General Program at Columbia Law School, on sabbatical from the New York Attorney General's office.
- Jennifer Brand, The Role of State Attorneys General in the Enforcement of Labor Laws, National State Attorneys General Program at Columbia Law School (Feb. 2007).