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September 1, 2023
Texas
Update: The District Court of Travis County, Texas has issued a Final Judgment, ruling that the Texas Regulatory Consistency Act is unconstitutional. The State of Texas is expected to appeal the decision.
Effective September 1, 2023, the Texas Regulatory Consistency Act (Act) will bar Texas cities and counties from enacting local ordinances, rules, or orders that conflict with or exceed various Texas statutes, unless the ordinances, rules, or orders are expressly permitted by another statute.
The Texas statutes that are “off-limits” to local regulation include the:
The Act offers additional detail about the Labor Code. Specifically, the Act will prohibit local regulation of issues such as “employment leave, hiring practices, breaks, employment benefits, scheduling practices, and any other terms of employment that exceed or conflict with federal or state law for employers other than a municipality or county.”
You may recall that, in 2018, the City of Austin adopted an ordinance requiring employers to provide paid sick leave to workers. A court struck down that ordinance as unconstitutional. The Act would prohibit cities from adopting such ordinances in the future.
Though the Act is slated to take effect on September 1, 2023, the City of Houston has filed a lawsuit (in which the Cities of San Antonio and El Paso joined) challenging the Act. That lawsuit may impact the Act’s effective date. In its lawsuit, the City of Houston argues that the Act violates the State constitution and weakens the authority of Texas cities and counties to self-govern. The City asks the court to declare the Act unconstitutional, void, and unenforceable.
Rubin Fortunato will continue to monitor the lawsuit and its impact on the Act’s effective date.
Florida
Effective October 1, 2023, Florida will require counties to suspend enforcement of any ordinance that is the subject of a lawsuit challenging the ordinance’s validity on the grounds that State law or the State’s Constitution preempts it or that it is arbitrary or unreasonable. The law requires a county to suspend enforcement of an ordinance if a legal challenge is filed within 90 days of the ordinance’s enactment. Courts are to give such cases priority and render a decision “as expeditiously as possible.”
The law further requires that counties prepare a business impact estimate before enacting a proposed local ordinance. The business impact estimate must include:
If a county ordinance is deemed to be arbitrary, unreasonable, or expressly preempted by State law or the State Constitution, the prevailing party is entitled to up to $50,000 in attorney’s fees. The attorney’s fees pendulum does not swing the other way if the county prevails.
The law does not apply to every ordinance. For example, it does not cover emergency ordinances, or ordinances required for compliance with federal or state law or regulation, among others.
Employer Takeaways
If these new laws stand, employers should see fewer variations in laws throughout the States of Florida and Texas.
The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Texas, Florida, Pennsylvania, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
