Texas legislation would curb cities’ ability to regulate labor

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After almost three decades in the construction industry, Juan Pedro Muñoz understands firsthand what it’s like to work outdoors during the Texas summer heat. And part of that, he said, is knowing the importance of drinking water and taking a break from the sun.

“It’s necessary to get a break, whether it’s five, 10 or 15 minutes — especially in the summer,” Muñoz said. Without such breaks, “you could get a heat stroke, you could faint and have to go to the hospital.”

He now offers breaks for his four employees as the owner of Muñoz Remodels, a residential remodeling company based in Austin. On top of safety, he said having adequate rest also helps ensure the workers’ quality of work.

And since 2010, Austin has done the same by adopting a city ordinance providing construction workers with a 10-minute rest break for every four hours of work. Dallas followed suit in 2015. According to Muñoz, the rule has empowered workers to expect and demand rest breaks — rather than relying on employers’ discretion.

“The workers know now what the law grants them,” said Muñoz, who is also a member of the Workers Defense Project, which advocates for construction workers.

This could soon change, however. In Texas, which has lagged behind other states in statewide labor protections, these rest-break ordinances are part of a larger trend over the past 15 years of cities and counties taking it upon themselves to adopt local benefits and safeguards for workers. But now, the ability to pass such ordinances could be removed as Republican state lawmakers push for legislation that would significantly curb a local government’s ability to regulate labor.

Companion legislation authored by state Rep. Dustin Burrows of Lubbock and state Sen. Brandon Creighton of Conroe would place a “field preemption” on the state’s labor code preventing cities and counties from passing labor-related ordinances that go beyond what state laws require. Their bills — House Bill 2127 and Senate Bill 814 — have already gotten Gov. Greg Abbott’s blessing.

In a joint announcement last month, the lawmakers say this is needed to “provide regulatory consistency for small businesses” and “return exclusive regulatory power to the state.”

“It’s a ‘stay in your lane’ bill,” Burrows added at a February event hosted by the National Federation of Independent Business. “If you’re a city, do your core functions. If you’re a county, do your core functions.”

Beyond the Legislature, the proposal has received support from a coalition called the Alliance for Securing and Strengthening the Economy in Texas, or ASSET, which includes the NFIB and 18 Texas business groups in various industries, such as construction, real estate, hospitality and oil. The NFIB, a major lobbying organization with over 20,000 members in Texas that has long pushed for such legislation across the country, also considers HB 2127 and SB 814 its priority bills this session.

“These small-business owners don’t have in-house compliance officers or attorneys that can help them figure out over a thousand different sets of local laws,” said Annie Spilman, NFIB’s Texas director. “They’re having a hard enough time keeping up with all the state and federal laws.”

But labor groups — who are organizing against the legislation, which some critics have called “the death star” — say it would restrict cities and counties far too much in their ability to provide better working conditions. And for a broad range of advocacy organizations and local officials, the bills are also a broader threat against cities and counties’ ability to have local control. At a Wednesday press conference that featured a coalition of workers’ advocates and community leaders, opponents called HB 2127 the “ending local freedom act.”

“[The legislation] goes so far beyond anything we’ve ever seen in this realm before,” Rick Levy, president of the Texas AFL-CIO, a federation of labor unions in the state with around 240,000 affiliated members, told The Texas Tribune.

At the same time, other Republican lawmakers have also filed bills focusing on local labor regulations — though they are narrower in scope. Their languages also echo that from Senate Bill 14 from 2021, a Creighton-led legislative effort that stirred up a major fight and was narrowly defeated twice. Some include:

• Senate Bill 130 — filed by Sen. Donna Campbell, R-New Braunfels — targets a range of local policies regulating employment benefits like paid sick leave.
• House Bill 121 and Senate Bill 563 are identical legislation filed respectively by Rep. Cody Vasut, R-Angleton, and Sen. Kevin Sparks, R-Midland. These bills would override local ordinances related to employment benefits as well as hiring and schedule practices “or other terms of employment” for all workers. Beyond paid sick leave, they could also include predictive scheduling, which requires employers to provide workers their schedules in advance to help make them more predictable and consistent.

“A matter of life and death”

Over the past two days, a wide range of interest groups came to the Texas Capitol to testify on SB 130 and HB 2127 — with much of the attention being paid to the latter measure. During a Wednesday hearing, House State Affairs Committee members peppered Burrows with questions and heard from dozens of labor organizations, business groups, local officials and other advocates for over five hours. Both bills are currently left pending in committee.

Given the scope of Burrows’ and Creighton’s legislation, many workers’ advocates have said they are still studying its full potential impact. But top of mind for many are ordinances that have previously been challenged and could also be overturned by this session’s narrower proposals, such as rest breaks for construction workers.

Texas has long enjoyed a construction boom, but it lags in statewide labor protections or benefits for workers, including lacking a mandate for most private companies to offer workers’ compensation. As a result, cities have adopted their own safeguards, such as rest breaks.

“Certainly rest break is the one that comes to front of mind, especially when you think about Texas and the heat,” Luis Figueroa, chief of legislative affairs at Every Texan, a nonprofit that advocates on several issues including workers’ rights, told the Tribune. “Not to exaggerate: It’s a matter of life and death.”

Advocates for construction workers like the Workers Defense Project have previously pushed for a statewide measure on rest breaks, with help from Democratic lawmakers, but with no luck.

This session, Rep. Terry Meza, D-Irving, is renewing the push with House Bill 495, which would require rest breaks for workers tied to government contractors or subcontractors. At the federal level, Democratic U.S. Rep. Sylvia Garcia of Houston — who has previously tried to address this issue during her time in the Texas Senate — reintroduced a House bill last month to provide a rest break for construction workers similar to the local ordinances in Texas.

Conservative lawmakers and business groups have also previously argued that this regulation should be left to the Occupational Safety and Health Administration to avoid confusion. And in a recent statement to the Tribune, Creighton said his proposal would not affect labor protections provided by the federal agency.

“Detractors have had the same arguments for years on this issue, and the facts are the facts: This bill has no impact on federal OSHA regulations and [the] bill does not prevent a city from ensuring workplace safety,” he said.

But labor advocates say local ordinances go further — and OSHA, which is known to be chronically under-resourced, is currently ill-equipped to protect workers from heat. In 2021, NPR and Columbia Journalism Investigations found that OSHA has long failed to establish a specific national standard to adequately prevent heat-related deaths and injuries in workplaces. That gap has also disproportionately affected workers of color. The agency has since started working on a standard, but the process is expected to take years.

“When legislators say, ‘We don’t need to do heat breaks because we have OSHA,’ that rings a little hollow to folks working every day,” Levy said.

Another high-profile and long-running target of Republican lawmakers and business groups is paid sick leave. In fact, the ASSET coalition that is throwing its weight behind HB 2127 and SB 814 was first launched in 2018 to fight the ordinance in Austin.

Unlike the rest break ordinances, Austin, San Antonio and Dallas have been blocked from enforcing their paid sick leave policies since 2020 by the court. The GOP lawmakers’ bills would now codify the ban on cities’ and counties’ ability to approve this benefit on their own. On the other side of the aisle, Democratic lawmakers have filed bills this session requiring private employers to provide paid sick leave, but they are unlikely to succeed in the Republican-dominated Legislature.

During the Wednesday hearing, some business groups that testified in support of HB 2127 said they don’t oppose these policies by themselves — but reiterated that they want to have consistent regulations across Texas.

“We actually were very proud during the pandemic to support a mandated paid sick leave mandate from the federal government,” Kelsey Erickson Streufert said on behalf of the Texas Restaurant Association, a member of the ASSET coalition. “But we do think it’s really important when we’re talking about issues that impact our entire economy, that cross thousands of local government boundaries, that we have consistency and predictability on those.”

Concerns about expanded impact

Beyond safety measures, workers’ advocates worry that the legislation could also strike down ordinances banning various forms of discrimination. Some include:

• Austin’s CROWN Act, which prohibits discrimination against employees based on hair texture or style, could be on the chopping block. There is no equivalent state or federal law.
• “Ban the box” ordinances, which prevent employers from asking applicants about their arrest or conviction records in the early stages of the hiring process. Advocates added that the federal Fair Chance Act currently applies only to federal agencies and contractors. Creighton has previously said he doesn’t oppose the idea but wants to keep the government out of a private employer’s decision.

Altogether, workers’ advocates said it’s important that residents and local leaders are able to have a voice in how their cities and counties are run — especially when state lawmakers have long ignored their calls for actions.

“It would be one thing if the state took seriously its obligation to protect workers,” said Levy. “The fact that not only do they completely stymie our ability to do anything at the state level, but then they go ahead to make sure that we don’t even do anything at the local level — when the will to do so exists — is completely outrageous.”

The offices of Campbell, Vasut and Sparks did not respond to the Tribune’s requests for interview and comment. Burrows’ office declined to provide an interview but sent a statement, in which the lawmaker pushed back against the advocates’ local approach.

“The taxpayer funded lobbyists are out in full force trying to undermine this effort,” Burrows told the Tribune prior to the Wednesday hearing. “They are beholden to special interest groups who cannot get their liberal agenda through at the statehouse, so they go to city halls across the State, creating a patchwork of unnecessary and anti-business ordinances.”

Case by case vs. sweeping legislation

The bills from Burrows and Creighton would also stop cities and counties from regulating issues that fall under the occupations, finance, insurance, agriculture and natural resources codes. Burrows also introduced on Wednesday a committee substitute, adding the business and commerce code and property code to his proposal. As critics continue to study the bills, they have raised concerns that the legislation could affect a broad swath of issues and may produce unintended consequences.

“I just prefer that we tackle [these issues] on a case-by-case basis,” Bennett Sandlin, the Texas Municipal League’s executive director, said to the Tribune. “Cities will win some and lose some — but at least we know what we’re talking about.”

During the Wednesday hearing, a San Antonio assistant city manager, Jeff Coyle, similarly noted that his city’s team of attorneys has been working hard to understand the proposal — something that he called “an exercise in exhaustion to go through all the what-if.” But after weeks, he said the process has created more questions and cautioned that the proposal, if enacted, would spur “a lot of litigation.”

“Nothing gets done easily in local government,” Coyle added. “We don’t recklessly, haphazardly do things to hurt the economy of the state and certainly of our own city.”

Business groups, however, say it’s necessary to broaden the legislation instead of targeting specific policies because it requires a lot of resources to have the same fight each session.

“This is a chance for the state to get this right,” Lisa Fullerton, a San Antonio-based food franchise owner affiliated with the NFIB, added at the Wednesday hearing. She noted that she has advocated for similar measures in 2019 and 2021. “So I’m just asking you, imploring you, to please help us get it across the finish line this session.”

In short, Charles “Rocky” Rhodes, a constitutional law professor at the South Texas College of Law, said the overarching proposal would significantly scale back the way many Texas cities work. In the state, places with over 5,000 residents are considered home-rule cities, which means they can adopt their own ordinances if they are not explicitly forbidden by Texas or federal laws.

“If this bill is enacted, this is really going to turn the traditional presumption for the authority of home-rule cities on its head,” Rhodes said.

During the Wednesday hearing, Burrows repeatedly reassured the committee that his proposal would not touch many areas of concerns that opponents have brought up. His committee substitute also clarifies that the proposal would not ban home-rule cities from “building or maintaining a road or imposing a tax” or providing services that other cities can do like drought control.

At the same time, opponents to Creighton and Burrows’ legislation have raised alarms about a clause in the initial proposal that would allow any person “adversely affected” by a city or county ordinance to bring a lawsuit against them anywhere in Texas. Though instead of a specific fine, the plaintiff could get back attorney’s fees and injunctive relief. Another related clause would also waive official and qualified immunity.

Since then, Burrows’ committee substitute has narrowed the scope of where claimants can bring their lawsuits to the county related to the case or an adjacent county.

But ultimately, some legal experts expect that the legislation’s general preemption language is more than enough to stop local governments from adopting new ordinances.

“If this whole thing passes this away, your city attorneys are going to be advising their city councils that whatever issue would be preempted and to just not pass it,” said Robert Miklos, a private lawyer who has previously worked as an assistant attorney for various local governments in Texas and served on Mesquite’s City Council. He also spent one term in the Legislature as a Democratic representative starting in 2009. “[The lawsuit and immunity clauses] are just an additional burden on cities to defend their actions. The preemption is the home run for this bill.”

Disclosure: Every Texan, Texas Municipal League and Texas Restaurant Association have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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