Enforceability of Local Hire Preference Programs (2013) / Chapter Skim
Currently Skimming:
Pages 5-18
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 5... ...
5 ployment of local businesses and residents and case studies of such tools in practice. Lastly, given the issues confronting the enforceability of local hire programs, this digest provides considerations that public agencies and community groups should take into account when contemplating whether to implement local hire programs.
|
From page 6... ...
6 rights belonging "of right" to citizens "of all free governments."39 In his opinion, Justice Washington stated: The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal…may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental…. From this premise, the Baldwin Court concluded that recreational elk hunting was not essential or fundamental to the nation's livelihood.40 In International Organization of Masters, Mates & Pilots v.
|
From page 7... ...
7 by government contractors on publicly funded contracts differently. A state's restrictions on nonresidents who are employed by, or seek employment from, any party other than the state or local government itself, even if the restrictions pertain to state-funded projects, constitute a prima facie violation of the Privileges and Immunities Clause.55 The United States Supreme Court has stated that "public employment is qualitatively different from employment in the private sector; it is a subspecies of the broader opportunity to pursue a common calling."56 The Supreme Court has explicitly protected private employers contracting with government entities.57 In Hicklin v.
|
From page 8... ...
8 argued that the ordinance was "necessary to counteract…social ills" and would prevent nonresidents from "liv[ing] off" Camden without "living in" Camden, the Court ultimately found it was impossible to evaluate these proffered justifications because the City did not present any findings of fact.72 Nonetheless, many cities have patterned themselves after Camden by incorporating similar language into their local preference programs.
|
From page 9... ...
9 However, in State v. Antonich, the Supreme Court of Wyoming reached the opposite conclusion on nearly identical facts.83 While Judge Posner identified specific evidence that could be used to justify discrimination against nonresidents, the Wyoming Supreme Court upheld a state local hire program without citing to any facts or findings indicating that nonresidents were actually keeping residents from working.84 The Wyoming statute required contractors to contact a local employment office to determine whether qualified resident workers were available, and if so, to hire them first.85 In holding that the Wyoming preference statute satisfied the requirements of the Toomer substantial reason test, the Wyoming Supreme Court's Privileges and Immunities analysis stressed that Toomer required states be given "considerable leeway" as to their analysis of perceived "local evils" and "appropriate cures."86 The Wyoming Supreme Court accepted the State's justification that the purpose of the Wyoming Preference Act was not to eradicate general unemployment but rather to "prevent a qualified Wyoming worker's remaining unemployed while a nonresident goes to work on a government-funded construction project."87 The Wyoming Supreme Court's decision in Antonich and its deference to the State's proffered justification has been sharply criticized because it represents a lack of evidence that was fatal in other cases.88 For example, Hirsch has stated that in contrast to Antonich, the Seventh Circuit's decision in "[W.C.M.
|
From page 10... ...
10 states and cities under the Privileges and Immunities Clause when they have a rational basis for their statutes.103 He noted that with respect to the less restrictive means rationale, "such an analysis, when carried too far, will ultimately lead to striking down almost any statute on the ground that the Court could think of another ‘less restrictive' way to write it."104 At the other end of the spectrum, the Wyoming Supreme Court's decision in Antonich highlights the possibility of meeting the close relation test simply by defining the State's reason very narrowly.105 As discussed above, the court found the statute's definition bore a close relation to the State's goal, since anyone listed on the employment office's list would be in some way looking for work. Despite the Piper and Antonich decisions, courts have subsequently continued to apply the "peculiar source of evil" element of the "close relation" prong enunciated in Toomer.
|
From page 11... ...
11 overcome by a showing that the State has no other means to advance a legitimate local purpose.120 However, where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach.121 If the law is not outright or intentionally discriminatory or protectionist, but still has some impact on interstate commerce, the Court will evaluate the law using a balancing test. The Court determines whether the interstate burden imposed by a law outweighs the local benefits.
|
From page 12... ...
12 utilizing the market participant exception, the Court disposed of the Commerce Clause challenge to the City of Boston's local hire program by finding that it fell within the scope of the market participant exception espoused in Hughes.139 The impact of a local business preference or a local hire program on out-of-state residents "figures into the analysis only after it is decided the City is regulating the market rather than participating in it."140 Thus when a local hire program is subject to a Commerce Clause challenge, the inquiry is whether the challenged "program constituted direct state participation in the market."141 In other words, is the state or municipality acting as a market participant or regulator by enacting and imposing a local hire program? State or Local Government Acting as a Market Participant or Regulator.
|
From page 13... ...
13 "downstream" regulation or regulation beyond the market which Alaska participated.158 However, in White, the Court allowed the City of Boston to exercise control beyond the point at which the City entered a contract.159 Both cases involved private parties making contracts with a public entity in which preferential use of local resources (workers in White, sawmills in South-Central Timber Development) was tied to the disposition of public property.160 The City of Boston required that its dollars must end up in the pockets of Boston residents and the State of Alaska required that its timber must end up in the mills of Alaskan factories.161 In White, whether a city is regulating or participating in the market seemed to depend on whether the city is spending public money.162 In White, the City expended its own funds in entering into construction contracts for public projects, whereas in South-Central Timber Development, the state was not spending any of its own money.163 Also, in White the Court reasoned that the City of Boston was not acting as a regulator because the private contractors' employees were essentially "working for the city."164 However, in South-Central Timber Development, because Alaska itself was not engaged in processing timber, it was not a market participant and therefore violated the Commerce Clause when it imposed conditions on purchasers of the State's timber that required them to send their timber to in-state processors.165 While the market participant doctrine enables a public agency to enact a local hire program without running afoul of the Commerce Clause, jurisprudence in this area highlights that drawing a distinction between market participant and regulator is not so clear cut.
|
From page 14... ...
14 of time.173 Such residential requirements have been held to implicate an individual's fundamental right to travel.
|
From page 15... ...
15 greater understanding of the urban problems faced by their students.191 With regard to police officers and firefighters, courts have cited that such continued residency requirements enhanced performance due to greater personal knowledge of the city, created a greater personal stake in the city's progress, reduced tardiness and absenteeism, provided economic benefits to the city from local expenditure of salaries, increased availability in emergencies, and deterred crime due to the presence of off-duty police.192 While a conditional residential requirement contained in a local hire program may be challenged under the Equal Protection Clause, it most likely will withstand the challenge, as conditional residential requirements are subject to the more deferential rational basis standard of review. So long as the government agency shows that the continued resident requirement bears a reasonable relationship to a legitimate state interest, it will not be found to violate the Equal Protection Clause.
|
From page 16... ...
16 lish its compelling interest by presenting evidence of its own direct participation in racial discrimination or its passive participation in private discrimination in a system of racial exclusion practiced by elements of a local industry.204 For example, two courts have upheld ordinances where the city and county presented statistical data showing minority contractors received a disproportionately low share of contracts given their representation in the total contractor population.205 However, in O'Donnell Construction Company.
|
From page 17... ...
17 Pennsylvania, Inc.
|
From page 18... ...
18 contracts and their duration.234 In both Associated Gen. Contractors of California and H.B.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.