NYC Fast food workers and their union allies rally in 2016 to raise the minimum wage. Another major battle over the minimum wage is now taking place in Georgia.

ATLANTA, Ga.—A federal appeals court is preparing to rule on whether fast-food workers from Birmingham, Alabama can sue the state for enacting the law that killed the city’s minimum-wage increase.

The 11th Circuit Court of Appeals held hearings June 25 on the suit, which alleges that the “pre-emption” law, which was hastily passed in 2016 to prohibit local governments from setting a minimum wage higher than the statewide $7.25 an hour, is racially discriminatory. The plaintiffs argue that it is, as it prevented Birmingham, which is more than 70% black, from raising its minimum to $10.10. The bill was sponsored by a state House member from a virtually all-white suburb, and not one black legislator voted for it.

More than 50 years after teenage civil-rights demonstrators in Birmingham faced off against police dogs and fire hoses, “we’re still fighting for racial and economic justice,” plaintiff Antoin Adams said on a telephone press conference after the hearing. Adams, who said he got a fast-food job instead of going to college because he had to help his mother support his younger brothers and sisters, called the difference between making $7.25 and $10.10 “a lifeline.”

Alabama does not have a state minimum wage, so it uses the federal minimum of $7.25. The Birmingham City Council voted in August 2015 to raise it, to $8.50 in July 2016 and then to $10.10 a year later. But in February 2016, the state House passed the Minimum Wage and Right-to-Work Act, which would nullify the Birmingham minimum-wage law and also pre-empt all local labor and employment regulations anywhere in the state. The City Council responded by moving the increase up to Feb. 24. On Feb. 25, the Senate approved the pre-emption bill, and Governor Robert Bentley signed it within two hours.

A coalition including fast-food workers, Birmingham ministers, the National Association for the Advancement of Colored People, and the Alabama Legislative Black Caucus challenged the law. A federal district court in Alabama dismissed their suit on the grounds that they did not have standing to sue the state, but in July 2018, a three-judge panel of the 11th Circuit unanimously ruled that they did, and ordered the lower court to hear the case. 

11th Circuit Judge Charles R. Wilson wrote that the court had “little trouble” concluding the plaintiffs had standing: They suffered an injury, as the pre-emption law denied them a pay increase; the state Attorney General was responsible for enforcing that law; and that ruling against the law would remedy the plaintiffs’ injury. He also held that they had “more than sufficient” evidence to show that their claim the law was discriminatory merited a day in court. The state of Alabama appealed that ruling, so all 12 active judges of the 11th Circuit are reconsidering it.

Eric Brown, the lawyer representing Antoin Adams and fellow fast-food worker Marnika Lewis, says that while the law is economically neutral on its face, its intent was clearly discriminatory. It “clearly targeted Birmingham,” he told LaborPress, and had a disparate racial impact, as most of the 40,000 Birmingham workers denied raises are black. He also contends that the way the law was rushed through the state legislature—introduced, passed and signed within 16 days early in the session, with some procedural steps skipped—was “consistent with Alabama’s history of removing power from black-majority communities.” 

“We hope the court also makes clear that allegations about a state’s history and the race of its legislators is not enough to call into question the state’s motives when it passes standard economic legislation,” Alabama Attorney General Steve Marshall responded in a statement emailed to LaborPress. He dismissed the plaintiffs’ arguments as claiming that the law “was intended to harm African-Americans because (1) it pre-empted a Birmingham ordinance that had set a higher minimum wage, (2) Birmingham is majority-black, and (3) white legislators voted for the law while black legislators opposed it.”

Marshall’s office also argued that the plaintiffs “sued the wrong parties”: They should instead be suing their employers for “not paying them what they are owed under Birmingham law,” and not the Attorney General, “who has not caused Plaintiffs’ alleged harms and cannot redress them.”

That argument appears to be that fast-food workers should sue their employers for paying them less than $10.10 an hour, and not the state official enforcing the law that says they don’t have to get more than $7.25. 

“It doesn’t make sense to us either,” says Brown.”

“This is part of a larger story about pre-emption,” Laura Huizar, senior staff attorney at the National Employment Law Project National Employment Law Project, said at the press conference. Corporate lobbyists and the American Legislative Exchange Council right-wing bill mill are increasingly exploiting pre-emption laws as a tool to block local labor, environmental, and regulatory initiatives, she explained. Most of the 25 states that pre-empt local minimum wages enacted those laws since the Fight for $15 campaign began in 2012, she added, although Colorado repealed its 1990s pre-emption law this year.

The 11th Circuit will not rule on the merits of the charge of discrimination, only on whether to send the case back to the district court for trial. If it does, the trial will focus on whether the Alabama law is a neutral economic measure or was intended to discriminate against black people in Birmingham.


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