Law Commons^™

Preemption’S Market Participant Immunity—A Constitutional Interpretation: Implications For Living Wage And Labor Peace Policies, Roger C. Hartley

Scholarly Articles

Nationwide, state and local governments are adopting policies that oblige their private-sector business partners to pay employees a "living wage" and/or to agree in various ways not to use public funds to finance anti-union activities. Conventional labor preemption principles would invalidate many of these conditional business arrangements unless they are immunized by preemption's market participant doctrine, first applied in the now decade-old Boston Harbor case. Accordingly, the focus of preemption litigation challenging living wage and labor peace policies ordinarily is the immunity's applicability. Because its reach is subject to widely varying interpretations, there exists a need to fix workable and …