Attorney General Warns Lincoln Minimum Wage Proposal Is Unconstitutional
by John Gage
Attorney General Mike Hilgers issued an opinion Friday stating that the Lincoln City Council’s proposed minimum wage increase is unconstitutional. The statement from Hilgers follows a request from State Sen. Jane Raybould for the attorney general to weigh in on the issue.
“We find the Local Wage Proposal is field preempted by state law,” Hilgers said. “Field preemption occurs when the Legislature has passed ‘a comprehensive scheme of legislation’ such that it can be ‘inferred’ that the legislature intended it to preempt local laws.”
The 15-page opinion also echoed concerns from business advocates that the city’s attempt to bypass state law would hurt the local economy.
“There can be little doubt that a minimum wage is not a purely municipal concern. The effects of the Local Wage Proposal would no doubt spill beyond Lincoln’s borders. Competitors in nearby labor markets will have to compete for labor with elevated Lincoln wages. The prices of goods and services originating in Lincoln but consumed elsewhere in the State will rise as labor costs rise. And businesses that operate in both Lincoln and other cities will be forced to reconsider their compensation policies across markets.”
The attorney general said that the Nebraska Supreme Court has previously found similar attempts by city councils to preempt state law unconstitutional. The city’s ordinance would undo the Nebraska Legislature’s changes to the minimum wage this year, which created a lower youth minimum wage and a 1.75% cost of living increase.
During the hearing Monday for the proposal, State Sen. Danielle Conrad defended the constitutionality of the ordinance. “There is no specific preemption on the books in Nebraska that would prevent a community from setting a wage standard that’s right for them,” Conrad said.
James Michael Bowers, the councilman who introduced the measure, issued a defiant statement Friday defending his proposal and saying the city council intended to vote on the ordinance despite the attorney general’s opinion.
“It is not surprising that the state claims Lincoln doesn’t have the authority. They already seem to believe voters don’t have the authority either,” he said. “The Attorney General’s opinion is not legally binding and has been incorrect before. The Council will not be intimidated by an opinion dropped on a Friday before a Monday vote.”
Monday’s vote will be the third reading and the final vote. Mayor Leirion Gaylor Baird says she supports the ordinance.
John Gage is the executive editor of The Plains Sentinel.
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