The Fight Against Preemption

Colorado beat back laws to prevent local governments from improving worker pay and conditions.

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Marilyn Sorensen has been a personal care provider for elderly, disabled, and sick patients in Denver, her native city, for about a quarter century. She loves her work. “My whole life, I’ve always loved the elder communities and the young communities,” she says. “They make my heart sing.”

Sorensen’s elderly clients tell her stories and create deep bonds with her. “I’ve learned so much from them, each and every one of them,” she shares. “I stayed just doing what I was doing because I got a lot of rewards in my heart that helped me to grow and thrive.”

“Anyone that’s working full time, two or more jobs, should never have to sit at their kitchen table and say, ‘Hey, we’re either buying groceries or [still] have a house.’ ”

But the pay she receives has been far less rewarding. “It’s hard to put food on the table, gas in the car,” Sorensen says. She drives her own car to visit patients, but if she has a flat tire or gets in an accident, the agencies that employ her won’t help cover the cost of repair. Once she was driving to visit a patient in heavy snow and her tire blew out, flinging her into an embankment. She had to pay almost $400 to have her car towed and the tire replaced; she had to borrow money from friends to cover the cost.

For a while, Sorensen was making $11 an hour. Then another company offered her $14 an hour—but never gave her enough hours to add up to full-time work, so she still wasn’t making enough to get by. “It makes you very insecure,” she says. “Picking [shit] with the chickens”—salvaging—“trying to figure it out.” She talks about making steak for clients and going home to ramen noodles.

But Sorensen’s financial situation is about to change. In 2019, Colorado became the first state in the nation to repeal a law that banned cities and counties from raising their minimum wages above that of the state. Shortly after it passed, Denver pushed through a minimum-wage increase to more than $15 an hour by 2022.

It’s a huge victory—not just for poorer residents of Colorado like Sorensen but in the nationwide fight against preemption laws that tie the hands of local officials.

“For years, we’ve seen the rapid growth of preemption laws around the country to block minimum wages,” says Laura Huizar, senior staff attorney at the National Employment Law Project. But the current flurry of activity began as a backlash to the movement for higher pay.

“As the Fight for $15 gained momentum, we saw a dramatic increase,” she says. In some states, lawmakers acted to prevent local communities from raising wages before they even tried.

These bills are typically introduced by Republicans and passed at the behest of corporate lobbying interests and patterned on model legislation from the conservative American Legislative Exchange Council (ALEC). “The corporate lobby has seen preemption as a very effective tactic to block policies they don’t like,” Huizar notes.

Now advocates want to use Colorado’s success as a model to turn the tide and reverse preemption in other states.

Currently, twenty-five states have laws preempting local governments from raising their minimum wages, according to the National Employment Law Project. A number of states also block better workplace benefits and rights.

These laws have concrete consequences: In the twelve cities and counties that tried to raise their wages only to have the efforts be stymied by state preemption, the group found some 346,000 workers lost out on an extra $1.5 billion annually—nearly $4,100 per person.

Sorensen was deeply involved in the fight for better pay in Colorado. “It was a multi-year effort to raise wages,” she says. “It didn’t just happen.” The Fight for $15 movement arrived in Colorado in 2013, when workers at a McDonald’s just north of Denver went on strike. Sorensen got involved after meeting with Service Employees International Union (SEIU) organizers and fellow care providers to talk about the challenges they were facing in their work.

“In that process we found that there’s other low-wage earners, not just home care,” she says. “It’s the airport, it’s McDonald’s. People are working two, three jobs.”

 So Sorensen and her fellow providers started protesting and marching with other low-wage workers, including fast-food employees, janitors, and adjunct professors, to demand better pay. According to Ron Ruggiero, president of SEIU Local 105, more than 100 Colorado workers went on strike as part of the Fight for $15 in 2014; in 2015, more than 1,000 people marched and rallied along Colfax Avenue, a major thoroughfare in Denver.

But while advocates wanted a $15 minimum wage, they knew it would be a tough sell. So they focused their energy on winning $12 through a ballot measure put directly before voters—and won in 2016.

That was always intended as a first step. “We made a commitment that we were going to continue to fight to increase wages,” notes Lizeth Chacon, executive director of Colorado People’s Action.

But they didn’t just want to keep putting higher wages on the ballot, fighting every election cycle. They wanted deeper change. Chacon recalls telling her allies, “Let’s not do business as usual. Let’s really think about a long-term strategy to support working Coloradans.”

Knowing how difficult it was for low-wage state residents to survive, Chacon says, fueled the campaign’s momentum. “There was a deep understanding of what was at stake for us that was so helpful to ground us on the importance of moving something like this forward.”

Preemption became a clear target. Advocates partnered with legal experts who were able to dig into the state constitution and figure out how to craft a bill that would expressly grant the power to raise the minimum wage to local governments. “We didn’t have a model policy from somewhere else we could pull from,” Chacon says. “We literally had to start from scratch.”

Getting legislation passed to foreclose preemption required a big coalition. Colorado People’s Action got together with SEIU, the Colorado Working Families Party, United Food and Commercial Workers International Union, and faith-based groups. The campaign also involved elected officials at the city and county levels, some of whom had tried getting the state legislature to raise the minimum wage on its own, to no avail. They were frustrated.

“They deeply believed that, as a locality, they needed to have more tools in their toolbox,” Chacon recalls. They wanted to “expand the level of work they could actually do to have a direct impact on their constituents’ lives.” The effort gained momentum.

“When the frame is local democracy, a lot of other groups that may not prioritize minimum wage come forward,” says Huizar of the National Employment Law Project. “We saw local officials, county associations, and others recognize the value of recovering local authority and advancing local democracy.”

Many people feel most politically connected to their local elected officials, so advocates made it clear this was about empowering those officials to make meaningful changes. That required educating lawmakers and state residents about what preemption—a technical, obscure term—really means.

Nothing would have passed, however, without an electoral strategy. A bill to roll back preemption was introduced in 2018; it passed the state house, and died in the senate. So advocates focused on flipping the senate to Democratic control in 2018—and electing not just any Democrats, but strong progressives.

Getting rid of preemption “had been a source of conversation for a while, but no Democrats were willing to carry that and be champions for it,” says Carlos Valverde, state director of the Colorado Working Families Party. The campaign needed champions to push it through. Then Jared Polis, a Democratic candidate for governor, pledged to support local control over the minimum wage as he campaigned for the seat, and won, in November 2018.

In May 2019, the Colorado legislature passed and Polis signed a bill to protect local minimum wage laws. Last November, the Denver City Council voted unanimously to gradually raise the city’s minimum wage to $15.87 by 2022. Even the advocates were surprised by how quickly the ordinance moved through the council. The first of three scheduled minimum wage increases, to $12.85 per hour, took effect on January 1.

Isabel Watson was one of the workers who testified in front of the Denver City Council about raising the minimum wage. She originally lived in downtown Denver but had to move further out because it was “just too pricey” on her low restaurant wages. Then she had to worry about getting transportation to and from work. During the winter months, when tourism slowed, her tips would dip as well, and she had to turn to family and friends to get by.

“In the moment, you feel so helpless,” she says. But being around others going through the same thing changed her perspective.

“Seeing that organizers have made this happen . . . makes you feel like I can do it too and be part of this.”

The victory in Denver was “powerful,” Watson says. “It will not only improve the lives of thousands of people, but also prove that working people have the power to improve an economy that works for us.” And she thinks it’s setting an example elsewhere. “Once Denver did it, now everyone’s really excited to gear up.”

Huizar agrees. “Colorado emerged as a true success story and a model for 2020 and beyond,” she says, noting an increased desire across the country for unraveling state preemption. “Cities and counties and residents are recognizing that all of their energy and ideas are being squashed by their state legislature. It’s really undermining the entire concept of local democracy.”

The goal of opposing preemption has led to a number of new state coalitions and brought in some unlikely allies, such as the American Heart Association and the Sierra Club.

Last year, bills to roll back preemption laws were introduced in twenty-two states, including eleven that would have emulated Colorado and given local governments the authority to raise the minimum wage, according to the National Employment Law Project. They also addressed a range of issues, from the banning of plastic bags to requiring employers to offer paid sick leave—an issue gaining momentum amid the COVID-19 pandemic.

None of the other minimum wage preemption rollbacks passed last year, but advocates are ready to keep pressing forward. “We expect those bills that didn’t succeed to come back up and we expect to see new efforts around the country,” Huizar says. “There is significant and growing energy to win power back for local communities.”

Colorado activists aren’t finished, either. Chacon’s organization is still working on raising wages outside of Denver, focusing on at least four other cities and counties this year.

For the poorest Denverites, the impact of a higher wage will be huge. Housing prices are skyrocketing as people flock to the state and developers focus on building luxury units. But the wage bump will mean that more people can afford to live in the city.

“Anyone that’s working full-time, two or more jobs, should never have to sit at their kitchen table and say, ‘Hey, we’re either buying groceries or [still] have a house,’ ” Chacon says. “That’s the situation in Denver and in Colorado that so many of our families are going through.”

“Some people will be able to quit that second job or have [fewer] hours,” says Ruggiero, who tells of a father who works at Denver International Airport and gets just four hours of sleep a night because he works two jobs. “Some of the stuff I’ve heard from workers is, ‘I’m going to be able to afford my prescriptions,’ ‘I’m going to afford a toy for my kid,’ ” he says. “This stuff is so basic.”

For Sorensen, a higher wage “will help in times of emergency” and help build a buffer against unexpected costs—a broken-down car, a broken hot water heater. “Anything that might come up, I’ll have a little bit of savings.”

Sorensen’s takeaway from the battle against preemption is instructive. “What I’ve realized is that when we fight, we win,” she says. “If you don’t fight, you don't win."