AG provides guidance on ‘responsible employer ordinances’

The Municipal Law Unit in the attorney general’s office reports that it regularly receives questions about whether cities and towns can adopt so-called “responsible employer ordinances” or bylaws, where the city or town requires bidders on municipal public works projects to comply with certain requirements.

As guidance, the Municipal Law Unit suggests that municipal officials consider recent case law on this topic.

Last summer, in Merit Construction Alliance v. City of Quincy [759 F.3d 122 (1st Cir. 2014)], the First Circuit Court of Appeals affirmed that a city “responsible employer ordinance” was unlawful to the extent that it required bidders on municipal public works projects to have an apprentice-training program. The court determined that this portion of Quincy’s ordinance was preempted by the federal Employee Retirement Income Security Act (ERISA) and thus could not be enforced.

Earlier, a federal District Court judge struck down other provisions in the same Quincy ordinance. In Merit Construction Alliance v. City of Quincy [2012 WL 1357656 (D.Mass.)], the court ruled unlawful the city’s requirement that contractors on public works projects employ a certain percentage of Quincy residents. The court determined that the residency requirement impeded the fundamental right of employment under the Privileges and Immunities Clause of the federal Constitution.

In addition, the city’s requirement that contractors provide an apprenticeship program, and health, welfare and pension benefits for their employees, were all preempted by ERISA, the federal District Court judge ruled.

Municipal officials with questions about the effects of these cases on existing or proposed “responsible employer” ordinances or bylaws may call the Municipal Law Unit at (508) 792-7600 or consult with their municipal counsel.