Posts Tagged ‘ Preemption ’

Understanding Preemption in Plain English

March 5th, 2010. By Kristine B

Over the last year or so, there’s been some discussion in the media about “preemption.” So, I thought I’d take this opportunity to explain preemption and why it’s important (specifically, why and how it affects you).

In legal-speak, preemption is based on the Supremacy Clause of the US Constitution. That clause states that some matters are of national importance rather than local importance. In those matters, national (federal) law must take precedence over state laws. Furthermore, states cannot pass laws that are inconsistent with the federal law. Preemption extends downwards as well, so that state law takes precedence over community law. pleading ignorance copy1 Understanding Preemption in Plain English

Ok—let’s give a completely unrealistic and ridiculous example to simplify things here. Let’s say our friends in Washington DC decide that Wednesdays should be “Wear Red” day—kind of a “have heart” or weekly AIDS Awareness thing. Now let’s also suppose that some state actually bans wearing red on Wednesdays. Whoops—would seem to be a problem here, right? Ahh, but with preemption, federal law could “preempt” state law and you could look forward to viewing a sea of red every Wednesday.

Now, this happens where the matter is of national importance. Not every law is subject to preemption. Also, there are situations in which state and federal laws are similar and do not entirely contradict each other, leaving questions about which laws should be followed.

For example, not all states have the same employment laws. There’s a federal law, called the Fair Labor Standards Act (FLSA) that sets out employee wages and hours worked. However, many states have laws that overlap with the FLSA and also set out wage and hour regulations. In those situations, it is not Read the rest of this entry »

Tags: Pleading Ignorance, Preemption
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