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The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace

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The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace Fordham Law Review Volume 62 Issue 3 Article 2 1993 The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace Henry H. Drummonds Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Henry H. Drummonds, The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace, 62 Fordham L. Rev. 469 (1993). Available at: https://ir.lawnet.fordham.edu/flr/vol62/iss3/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace Cover Page Footnote Associate Professor of Law, Northwestern School of Law, Lewis and Clark College. Professor Drummonds practiced labor and employment law for seventeen years before becoming a professor. He largely represented labor unions and individual employees in disputes with employers. Professor Drummonds expresses his appreciation to the following people for their intellectual and moral support: Carlin Chrisman Drummonds, Dean Steven Kanter, Professor Douglas Newell, Professor Edward Brunet, Professor Susan Mandiberg, Professor Brian Blum, Professor Michael Blumm, Professor Bill Williamson, Professor Arthur LaFrance, and his law clerks, Jerrold Watts and Robert Truman. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol62/iss3/2 THE SISTER SOVEREIGN STATES: PREEMPTION AND THE SECOND TWENTIETH CENTURY REVOLUTION IN THE LAW OF THE AMERICAN WORKPLACE HENRY H. DR UMMONDS* In this Article, Professor Drummonds examines the division of work- place regulatory authority between the states and the federal govern- ment. The Article first explores the decline of the New Deal system of collective bargainingand reviews the debates ignited by this decline. It then reviews the role of state law in regulatingthe workplace, and illus- trates the complex relationship between federal and state law in the workplace by examining reductions in coverage for AIDS in employer- provided group medical plans. The Article sets forth a framework and theory for decidingfederal-state authority issues. It analyzes traditional preemption doctrine and recent Supreme Court decisions outside of la- bor and employment law, and then applies these lessons to preemption doctrine in employment law, urging congressional revision of ERISA's preemption provisions, andjudicial abrogationof current FederalArbi- tration Act preemption doctrine The Article concludes by recom- mending major revisions in the primary preemption doctrines that evolved out of the New Deal-era statutes concerning unionized employees. CONTENTS Introduction ................................................... 471 I. The Second Twentieth Century Revolution in the Law of the American Workplace .................................. 478 A. The Collapse of Collective Bargaining and the Rise of Individual Rights in Private-Sector Employment: The Eclipse of Private Ordering ........................... 479 B. The Theoretical Debate ............................... 484 II. State Law and the Revolution in the Workplace ........... 489 A. The State Role in the Compensation and Prevention of Workplace Injury and Occupational Disease ........... 493 * Associate Professor of Law, Northwestern School of Law, Lewis and Clark Col- lege. Professor Drummonds practiced labor and employment law for seventeen years before becoming a professor. He largely represented labor unions and individual employ- ees in disputes with employers. Professor Drummonds expresses his appreciation to the following people for their intellectual and moral support: Carlin Chrisman Drummonds, Dean Steven Kanter, Professor Douglas Newell, Professor Edward Brunet, Professor Su- san Mandiberg, Professor Brian Blum, Professor Michael Blumm, Professor Bill Wil- liamson, Professor Arthur LaFrance, and his law clerks, Jerrold Watts and Robert Truman. FORDHAM LAW REVIEW [Vol. 62 B. State Regulation of Status Discrimination .............. 496 1. The Search for Remedies .......................... 496 2. Broader Discrimination Prohibitions ............... 500 3. Burden of Proof Rules ............................ 501 C. State Regulation Accommodating Persons Working Inside and Outside the Home ......................... 502 D. Privacy in the Workplace ............................. 504 1. Technological Testing ............................. 504 2. M onitoring ....................................... 506 3. Other Examples of State Law Privacy Regulation .. 506 E. W rongful Discharge .................................. 507 F. Miscellaneous Areas of State Regulation ............... 507 III. An Illustration: AIDS Coverage in Workplace Medical Plans .................................................... 509 IV. The Theory of Preemption in the Larger Context .......... 513 A. Federalism as a Political or Pragmatic Question ....... 514 B. Federalism as a Normative or Policy Question ......... 517 1. Arguments Against Preemption .................... 518 a. Experimentation ............................... 518 b. Context or "Shaping" ......................... 519 c. Power-Diffusion ............................... 521 d. Civic Autonomy and Participation ............. 522 2. Arguments for Preemption ........................ 523 a. Uniformity and Efficiency ...................... 523 b. Uniformity and Fairness ....................... 524 c. Avoidance of Parochial Interests ............... 525 C. The Institutional or Interpretative Aspects of Federalism ........................................... 525 V. Preemption in Practice: Recent Developments in Supreme Court Preemption Doctrine ................................ 528 A. The "Clear Statement" Doctrine ...................... 528 B. The Traditional Framework for Analyzing Preemption Issues ................................................ 529 C. An Emerging Framework for Deciding When Congress Affirmatively Has Exercised Its Power to Preempt and When Joint State-Federal Authority Remains U ndisturbed .......................................... 530 VI. Applying the General Framework-Preemption in Employment Law ......................................... 534 A. The Baseline Model: Explicit Non-Preemption Unless State Law Directly Conflicts With Federal Rights or Prohibitions ........................... .............. 536 B. The ERISA Model of Optimum and Exclusive Federal Standards ............................................. 543 1. The Distinction Between Self-Insured and Insured Employer-Provided Medical Plans ................. 546 1993] THE SISTER SOVEREIGN STATES 2. ERISA Preemption of State Regulation Relating to Family and Marriage Issues ....................... 549 3. ERISA and Laws Relating to Worker Injury ....... 550 C. An Intermediate Model: The Scheme of Cooperative Preemption Embodied in OSHA ....................... 552 D. Preemption Under the Federal Arbitration Act ........ 555 VII. State Law and the New Deal-Era Collective Bargaining Statutes .................................................. 560 A. The Politics and Pragmatic Aspects of Labor Law Preemption ........................................... 562 B. Three Blind Mice: A Summary of the Existing D octrines ............................................. 564 C. The Interpretational Perspective ....................... 567 1. The Garmon Doctrine-Arguably Protected or Arguably Prohibited-Federal Remedy Scheme and Primary Agency Jurisdiction ....................... 567 2. Machinists Preemption ............................ 571 3. Section 301 Preemption ........................... 574 D. The Policy or Normative Perspective on Labor Law Preem ption ........................................... 582 1. The NLRB's Primary Agency Jurisdiction ......... 582 2. Section 301 Preemption of State Statutory and Tort Claim s ............................................ 588 Conclusion ..................................................... 595 INTRODUCTION r1HIS Article examines the division of workplace regulatory authority X between the sister sovereigns' and the federal government.2 Under 1. Some of my colleagues have expressed irritation over the use of the phrase "sister sovereigns" in this Article. I use the phrase as a synonym for "states" for three reasons. First, the United States Supreme Court has emphasized the status of the states as "sister sovereigns" in its federalism decisions during the past two terms. See, eg., New York v. United States, 112 S. Ct. 2408, 2417-18 (1992); Gregory v. Ashcroft, Ill S. Ct. 2395, 2399 (1991). Second, the phrase focuses attention on the unique status of the states under the United States Constitution. Third, the language used in political and legal discourse not only reflects a political/legal culture, but helps shape it. Thus, "sister sovereigns" neatly summarizes this Article's thesis-that the states traditionally have played, and should continue to play, a primary role in governing the workplace. 2. The division of governmental powers between the center and the constituent parts of a political union constitutes a fundamental problem of political philosophy. See gener- ally The Federalist No. 82 (Alexander Hamilton), Nos. 50, 51
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