# Prologue — Shannon v. 520 South Michigan Avenue Associates, Ltd. (No. 09-14) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0708%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Prologue - **Published:** January 1, 2009 ## Text PETITION FOR WRIT OF CERTIORARI x 09-14 JUN29 2009 No. OFFICE OF THE CLERK In the Supreme Court of the United States CATHERINE SHANNON, DIRECTOR OF THE ILLINOIS DEPARTMENT OF LABOR, ET AL., PETITIONERS, U. 520 SOUTH MICHIGAN AVENUE ASSOCIATES, LTD., RESPONDENT. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR A WRIT OF CERTIORARI RICHARD G. MCCRACKEN PAUL L. MORE Davis Cowell & Bowe, LLP 595 Market St., Ste. 1400 San Francisco, California 94105 (415) 597-7200 WESLEY KENNEDY N. ELIZABETH REYNOLDS Allison Slutsky & Kennedy PC 230 W. Monroe, Ste. 2600 Chicago, Illinois 60606 (312) 364-9400 LISA MADIGAN Attorney General of Illinois MICHAEL A. SCODRO* Solicitor General JANE ELINOR NOTZ Deputy Solicitor General CARL J. ELITZ Ass’t Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-3698 * Counsel of Record Attorneys for Petitioners nil QUESTION PRESENTED Whether, in conflict with other circuits and decisions of this Court, the court of appeals incorrectly held that a state statute cannot be a “minimum labor standard”—and therefore cannot survive preemption by the National Labor Relations Act, 29 U.S.C. §151 et seq.—if the law is tailored to account for occupational and regional differences or is “stringent” in its require- ments. i RULE 14.1(b) STATEMENT A list of all parties to the proceeding in the court whose judgment is sought to be reviewed is as follows: Defendant-Appellee/Petitioner: Catherine Shannon, Director of the Illinois Department of Labor. Intervenor-Appellee/Petitioner: UNITE HERE Local 1. Plaintiff-Appellant/Respondent: 520 South Michigan Avenue Associates, Ltd., d/b/a The Congress Plaza Hotel & Convention Center. il TABLE OF CONTENTS Page QUESTION PRESENTED ....cccccccccnccenons i FOULS 14.10) SLA TRIN ccc cee ences il TABLES OF AUTIIURETIBS 2... cw cece eecsscns vi PP UTM EIYY 5 occas enews eseekieevaeus 1 Per 6.65 os nek onset eee ees 2 CONSTITUTIONAL PROVISION AND SEALE Ee PERV RIVED ow cece crews aes 2 piggy 9 0 by y+. Sarr ima ern ADs errr ene yr 3 ee ES 5 hs 0 eS a ORK e eae eee a) REASONS FOR GRANTING THE PETITION ... 12 I. Courts Are Divided Over Whether Targeted Minimum Labor Standards Are Preempted By The NLRA .......... 13 Il. The Decision Below Is Incompatible With Decisions Of This Court ......... . 23 III]. The Issue Presented Is One Of Critical Importance, And The Decision Below Casts Doubt On Many Existing Workplace Protection EMG. 56a. . OCRR SACRE ECR es 35 ee as eee gla Sma a ick Ie la A. 520So. Mich. Ave. Assocs., Ltd., d/b/a The Congress Plaza Hotel & Convention Ctr. v. Shannon, 549 F.3d RE Cr, ois ccc bs tcc vieees la B. 520 So. Mich. Ave. Assocs., Ltd., d/b/a The Congress Plaza Hotel & Convention Ctr. v. Shannon, No. 06 C 4552 (N.D. Ill. Sept. 17, 2007) . . 48a C. 520 So. Mich. Ave. Assocs., Ltd., d/b/a The Congress Plaza Hotel & Conventicn Ctr. v. Shannon, No. 06 C 4552 (N.D. Ill. Apr. 20, 2009) (final OUTENE Oe PD he ee ei ee cee seas 77a D. 520 So. Mich. Ave. Assocs., Lid., d/b/a The Congress Plaza Hotel & Convention Ctr. v. Shannon, No. 06 C 4552 (N.D. Ill. Apr. 20, 2009) (order denying injunctive relief) ............. 79a E. 520 So. Mich. Ave. Assocs., Ltd., d/b/a The Congress Plaza Hotel & Convention Ctr. v. Shannon, No. 07-3377 (7th Cir. Jan. 28, 2009) (order denying rehearingen banc) ..... 8la V F. The Room Attendant Amendment to the Illinois One Day Rest in Seven Act, 820 Ill. Comp. Stat. 140/3.1 (yO BER IERSISGE Caaf tani 9 eres ans Pa 82a G. Ill. Hotel & Lodging Ass’n v. Ludwig, 869 N.E.2d 846 (Ill. App. Ct. 2007) .... 85a Vi TABLE OF AUTHORITIES Page(s) CONSTITUTIONAL PROVISIONS: ee ee cebu a cieseaeéeees sre 2 Corpo Greet. Are. TT, 8 OGG . ww cc ccc ce ereens 41 CASES: 520 S. Mich. Ave. Assocs., Ltd., d/b/a The Congress Plaza Hotel & Convention Ctr. v. Shannon, 549 F.3d 1119 (7th Cir. 2008) .......... passim Associated Builders & Contractors of S. Cal.,Inc. v. Nunn, 356 F.3d 979 (9th Cir. 2004) ....... 10-11, 15, 16 Barentine v. Ark.-Best Freight Sys., Inc., NE cs cv sce e ert eeneeess 25 Barnes v. Stone Container Corp.., 942 F.2d 689 (9th Cir. 1991) ............... 18 Bd. of Trs. of Carpenters Pension Fund for N. Cal. v. Reyes, 688 F.2d 671 a SE er 21 Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., ee Sy 5 rer 35 vil Chamber of Commerce v. Bragdon, 64 F.3d 497 (9th Cir. 1995) ............ passim DeCanas v. Bica, 424 U.S. 351 (1976) ...... 3, 24, 31 Delgado v. Bd. of Election Comm’rs of City of Chicago, 865 N.E.2d 183 (Ill. 2007) ......... 21 Dillingham Constr., N.A., Inc. v. County of Sonoma,190 F.3d 1034 Uk 5 wh oa wk 6 dee eee eS 11, 14 Expert Elec., Inc. v. Levine, 654 F.2d 1227 (2d Cir. 1977) .... 0... cee cee 21 Exxon Corp. v. Governor of Md., (gt Mies. | rr Fort Halifax Packing Co., Inc. v. Coyne, ee OE hic kw Kees eo eae passim Gen. Elec. Co. v. N.Y. Dep’t of Labor, 601 F.2d 36 Gd Cir. 1968)... cc ce cee 16 Gen. Elec. Co. v. N.Y. State Dep’t of Labor, 698 F. Supp. 1093 (S.D.N.Y. 1988) ....... 16, 17 Golden State Transit Corp. v. City of Los Angeles, — ep ge Cs) ene are 8 Hearne v. Bd. of Educ. of City of Chicago, 186 F.3ea 770 (7th Cir. 1008) ...........00-. 19 Vill Hinterlong v. Baldwin, 720 N.E.2d 315 (Ill. App. Ct. 1999) ......... 21 Holden v. Hardy, 169 U.S. 366 (1898) .......... 36 Hull v. Dutton, 935 F.2d 1194 (11th Cir. 1991) ... 18 Ill. Hotel & Lodging Ass’n v. Ludwig, 869 N.E.2d 846 (Ill. App. Ct. 2007) ..... passim Ill. Hotel & Lodging Ass’n v. Ludwig, yy 9 8 3 ot Ri Ry 6 rn 9 Lividas v. Bradshaw, RE SS eran nave 3, 33 Lodge 76, Int’l Ass’n of Machinists & Aerospace Workers v. Wis. Employment Relations Comm'n, 427 U.S. 132 (1976) .......... passim Malone v. White Motor Corp.., ik ES ey). | 26, 33 Metro. Life Ins. Co. v. Massachusetts, Fe Cr Pe CRUE six bb oa ke boas eee wa passim Nat’l Broad. Co. v. Bradshaw, 70 F.3d 69 (9th Cir. 1995) .............. 11,15 NLRB v. Nash-Finch Co., 404 U.S. 138 (1971) .... 8 New Orleans v. Dukes. 427 U.S. 297 (1976) 1X N.Y. Tel. Co. v. N.Y. State Dep't of Labor, 440 Ue EE ek wesc ccc ccc eee 27 People v. Carpenter, 888 N.E.2d 105 (Ill. 2008) ... 21 Rein v. David A. Noyes & Co., 665 N.E.2d 1199 (Tll. 1996) ................ 21 Rhoades v. Casey, 196 F.3d 592 (5th Cir. 1999) ... 21 Roundout Elec., Inc. v. NYS Dep’t of Labor, 835 F.3d 162 (2d Cir. 20038) ..............00. 16 San Diego Bldg. Trades Council v. Garmon, SOO Ue. Mee ca we ssc cet ccc ee 7-8 S. Cal. Edison Co. v. Pub. Utils. Comm’n, 140 Cal. App. 4th 1085 (2006) .......... 18, 22 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064 (9th Cir. 2003) .............. 21 The St. Thomas-St. John Hotel & Tourism Ass’n, Inc. v. Gov’t of the United States Virgin Islands, 218 F.3d 232 (3d Cir. 2000) ........ 18 Viceroy Gold Corp. v. Aubry, 75 F.3d 482 (9th Cir. 1996) ............. 11,15 Wash. Servs. Contractors Coalition v. District of Columbia, 54 F.3d 811 (D.C. Cir. 1995) ... 11,17 X Weiland v. Telectronics Pacing Sys., Inc., TOL Nee LEGS CH. BOBO) occ cccccececen 21 STATUTES, REGULATIONS, AND CODES pie hake fo | 5} Sneed ne arte 2 got Sol oo ef” er rrr 3 Ete OR Serr eae ry rn rs 8 ee Se ae Go .6 6 ska elke de eee ee 8 43 Pa. Cons. Stat. Ann. § 1301.207(c) SE Cas a ERD eae ee ee ES 37 210 Ill. Comp. Stat. 85/10.9(b) (2008) ........... 37 §20 Ill. Comp. Stat. 1380/1 (2008) ............... 39 820 Il]. Comp. Stat. 130/2 (2008)............... 39 820 Ill. Comp. Stat. 140/3.1 (2008) ......... passim 820 Ill. Comp. Stat. 140/6 (2008) ............... 20 Alaska Stat. § 23.10.410 (2009) ................ 38 Ariz. Rev. Stat. Ann. § 23-364(B) (2009) ........ 40 Ariz. Rev. Stat. Ann. § 23-364(G) (2009) ........ 40 Colo. Rev. Stat. Ann. § 8-13-102 (West 2009) ..... 38 XI Ind. Code Ann. § 5-16-7-1 (West 2009) .......... 39 Me. Rev. Stat. Ann. tit. 26, § 603(5) (2009) ...... 37 Mass. Gen. Laws. Ann. ch. 149, § 27 I 5 0 os ce pha wT ath ek ead ks 6 als es 4] Mo. Ann. Stat. § 290.020 (West 2009)........... 38 Neb. Rev. Stat. § 48-212 (2008) ................ 37 N.J. Stat. Ann. § 34:20-9 (West 2009) ............ 40 N.Y. Lab. Law § 162 (McKinney 2009) .......... 37 R.I. Gen Laws § 23-17.20-3(b) (2009) ........... 38 Tenn. Code Ann. § 12-4-405 (West 2009) ........ 39 Tex. Gov’t Code Ann. § 2258.021(a)(1) (2009) .... 39 W. Va. Code Ann. § 21-5F-3 (West 2009) 38 Wash. Rev. Code § 49.28.140 (West 2009) ...... 38 Wis. Stat. Ann. § 103.49(d)(1) (West 2009) ...... 39 Wis. Stat. Ann. § 103.85(2) (West 2009) ......... 37 Wis. Stat. Ann. § 103.96(2) (West 2009) ......... 4] 7 Colo. Code Regs. § 1103-1(8) ................ 36 Xi} Md. Procure. Regs. 21.11.10.01 § (B)(4), (5) at ate ae Ct ht ee ree ae ia ag . 89 San Diego, Cal., Municipal Code § 22.4230 I ore ogre al. De uatas SP a aimare<5 gl A Santa Fe, N.M., Municipa) Ordinance 28-1.6(B) .. 40 S.F., Cal., Admin. Code § 12W.7 ............... 40 OTHER: http://quickfacts.census.gov/qfd/states/17/ 17031.html .......... CP ares | 20 http://www.census.gov/statab/ranks/ es ss rae eae ba noe beac et _os ae http://www.dllr.state.md.us/labor/livingwage fagqa.shtml#15 39 http://www.no-smoke.org/pdf/100o0rdlisttabs.pdf.. 39 In the Supreme Court of the United States No. —— CATHERINE SHANNON, DIRECTOR OF THE ILLINOIS DEPARTMENT OF LABOR, ET AL., PETITIONERS, U. 520 SOUTH MICHIGAN AVENUE ASSOCIATES, LTD., RESPONDENT. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR A WRIT OF CERTIORARI Petitioners, Catherine Shannon, Director of the Illinois Department of Labor, and UNITE HERE Local 1, respectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit. OPINIONS BELOW The opinion of the United States Court of Appeals for the Seventh Circuit, App. la-47a, is reported at 549 F.3d 1119 (7th Cir. 2008). The opinion of the district court, App. 48a-76a, is unreported. Z JURISDICTION The Seventh Circuit Court of Appeals entered judgment on December 15, 2008, App. la-47a, and denied rehearing en banc on January 28, 2009, App. 8la. On April 28, 2009, Justice Stevens extended the time within which to file a petition for writ of certiorari until June 27, 2009. The jurisdiction of this Court rests upon 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISION AND STATUTE INVOLVED The Supremacy Clause provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const. art. VI, cl. 2. The Room Attendant Amend- ment to the Illinois One Day Rest in Seven Act (“Amendment”), 820 Ill. Comp. Stat. 140/3.1 (2008), is set forth at App. 82a-84a. 2 INTRODUCTION In enacting the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seg., Congress did not “intend|j to disturb” the States’ “‘broad authority under their police powers to regulate the employment relationship to protect workers within’” their borders. Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985) (quoting DeCanas v. Bica, 424 U.S. 351, 356 (1976)). ther, “Congress developed the framework for self-organization and collective bargaining of the NLRA within the larger body of state law promoting public health and s«fety.” Jbid. Accordingly, the NLRA does not preempt “minimum labor standard[s]” created by state law, Fort Halifax Packing Co., Inc. v. Coyne, 482 US. 1, 7 (1987), but instead “employers and employees come to the bargaining table with rights under state law that form a ‘backdrop’ for their negotiations,” id. at 21 (quoting Metro. Life, 471 U.S. at 757). Applying these principles, this Court has repeat- edly rejected claims that substantive workplace stand- ards are preempted, see Fort Halifax, 482 U.S. at 19-23; Metro. Life, 471 U.S. at 748-758, and has similarly rejected a preemption challenge to suits to enforce such standards, see Lividas v. Bradshaw, 512 U.S. 107, 121- 125 (1994). The Court’s serial rejection of preemption chal- lenges to state minimum labor standards should have resulted in uniform precedent on the subject. But dif- 4 ferences over the proper reading of certain key terms in the Court’s decisions have bred mischief and confusion in the lower courts, as exemplified by the decision below. More than twenty years after the Court’s sem- inal preemption decisions on the subject, the Seventh Circuit in this case bemoaned what it perceived as “sparse” “guidance” on what constitutes a “minimum labor standard,” App. 22a, and identified discord among lower court decisions over the proper scope of the States’ authority to enact workplace protection legislation without running afoul of federal law, App. 24a-26a. Adopting the approach it deemed the “better reasoned” among the competing lower court analyses, App. 26a, the Seventh Circuit held that an Illinois statute requiring hotel employers in Cook County to provide periodic rest breaks to their room attendants is preempted by the NLRA. The court determined that the rest break law in question is not a minimum labor standard because the law’s protections are tailored to account for occupa- tional and regional differences and are, in the court’s view, overly “stringent.” But this view—that lowest- common-denominator laws setting the same minimum standards regardless of material differences are not preempted, but that better-tailored laws are—is not only illogical, but it conflicts with the decisions of other federal and state courts of appeal, is impossible to square with this Court’s precedents, and threatens a 5 myriad of existing state and local workplace laws. This Court should grant certiorari to provide state and local governments with essential guidance on the limits of their police power to regulate the workplace. STATEMENT 1. The Amendment went into effect in 2005. It re- quires hotel employers to provide their room attend- ants with two fifteen-minute paid rest breaks and one thirty-minute unpaid meal period during each workday in which the room attendant works at least seven hours. See 820 Ill. Comp. Stat. 140/3.1(b), (c) (2008). Attend- ants who fail to receive the mandated break periods have a private cause of action for three times their regular hourly wage for each workday in which the breaks are not provided, and attendants are protected against retaliation for invoking their rights under the Amendment. See 820 Ill. Comp. Stat. 140/3.1(, (g) (2008). The anti-retaliation provision creates a pre- sumption of retaliation that the employer may rebut. See 820 Ill. Comp. Stat. 140/3.1(g) (2008). 2. As originally introduced in the Illinois legis- lature, the Amendment applied to all hotels in the State. See Ill. Hotel & Lodging Ass’n v. Ludwig, 869 N.E.2d 846 (Ill. App. Ct. 2007) (“Ludwig”) (hereinafter, all citations to Ludwig are to the attached appendix). After “(llegislators from downstate areas * * * stressed the different competitive pressures faced by hotels and 6 motels in their regions,” a compromise bill was intro- duced that applied the law solely to hotels in Cook County, where Chicago is located. App. 92a. As adopt- ed, the Amendment applies to all hotels and other transient occupancy establishments (union and nonunion alike) in Cook County. See 820 Ill. Comp. Stat. 140/3.1(b) (2008). 3. In 2007, the Illinois Appellate Court upheld the Amendment against a constitutional challenge brought by the Illinois Hotel and Lodging Association (“Associ- ation”), a statewide trade organization of hotels with members operating in Cook County. See App. 86a. The court rejected the Association’s claims that the Amend- ment was preempted by the NLRA, as well as claims that the Amendment violated the Illinois Constitution’s prohibition against special legislation and the federal and state Equal Protection Clauses. See App. 85a-86a. The state appellate court determined that the Amendment “was introduced and passed to protect hotel room attendants from overwork.” App. 87a. The evidence demonstrated that these “attendants essentially work on a piece-rate system,” meaning that “(bJoth union and nonunion hotels require room attend- ” App. 86a. Thus, “[a]lthough they are paid by the hour, room attendants are required to deliver a quantified amount of work during their shift and can be disciplined if they fail to do so.” ants to clean a quota of rooms each work shift. Ibid. The court found that many room 7 attendants skip rest breaks to meet their quotas, con- tributing to physical injury. See App. 87a. And the risk of injury has only increased in recent years, as hotels have added heavier mattresses, more pillows, and ad- ditional amenities to compete for travelers’ business, resulting in an increased number and intensity of tasks required to clean a room. See ibid. The Illinois Appellate Court then rejected the Association’s state law and federal equal protection claims, which were premised on the Amendment’s application in Cook County alone, because the ILlinois General Assembly’s decision to treat hotels located in Cook County differently from hotels located elsewhere in the State was reasonable. See App. 93a-95a. As the court explained, “Cook County has more hotel room attendants than the rest of the State combined,” and “the revenue per available room for all Chicago hotels * * * was higher than any other area of the State.” App. 84a. “The legislature rationally could have concluded from such evidence that [the Amendment] would protect hotel room attendants from overwork in the jurisdiction where the majority of such employees would be impacted and in the jurisdiction best positioned to absorb the costs of [the] new regulations.” App. 94a- 95a. The court further rejected the Association’s claim that the Amendment is preempted under either the “Garmon,” see San Diego Bldg. Trades Council uv. 8 Garmon, 359 U.S. 236 (1959), or the “Machinists,” see Lodge 76, Int’l Ass’n of Machinists & Aerospace Workers v. Wis. Employment Relations Comm ’n, 427 U.S. 132 (1976), doctrine of NLRA preemption. See App. 95a-102a.’ The court explained that because the Amendment “‘affect[s] union and nonunion employees equally’” and “‘neither encouragels] nor discourage|s] the collective-bargaining processes that are the subject of the NLRA,”’” it is “a minimum labor standard” and thus survives under this Court’s labor preemption cases. “ce , Garmon preemption precludes States from regulating activity arguably protected by section 7 of the NLRA (protecting employees’ rights to self-organization, to bargain collectively, to form, join, or assist labor organizations, and to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as to refrain from these activities, 29 U.S.C. § 157) or prohibited by section 8 (pro- hibiting unfair labor practices by employers and labor organiz- ations, see 29 U.S.C. § 158). See Garmon, 359 U.S. at 241-245. Machinists preemption bars state regulation of conduct that Congress neither protected through section 7 nor prohibited though section 8 but instead “left ‘to be controlled by the free play of economic forces.’” Machinists, 427 U.S. at 140 (quoting NLRB v. Nash-Finch Co., 404 U.S. 138, 144 (1971)). Machinists thus precludes States from enacting laws that interfere with the collective bargaining process, such as laws re- quiring employers to settle labor disputes to receive regulatory permits. See Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 615-616 (1986). 9 App. 101la (quoting Metro. Life, 471 U.S. at 755). The Supreme Court of Illinois declined the Association’s request for leave to appeal. See J///. Hotel & Lodging Ass’n v. Ludwig, 875 N.E.2d 1111 (Ill. 2007). 4. While Ludwig was pending in the Illinois courts, respondent, which is not a member of the Association, filed this action in federal court, raising claims similar to the ones that would fail in that case—that the Amendment violates due process, equal protection, and [llinois’s prohibition against special legislation, and is preempted by the NLRA and the Labor Management Relations Act (““LMRA”). See App. 8a. On petitioners’ motions to dismiss, the district court upheld the Amendment, finding the Illinois Appellate Court’s opinion rejecting “almost identical” federal claims in Ludwig to be “well-reasoned” and “persuasive,” and declining jurisdiction over the supplemental state-law claims. App. 50a, 76a. 5. On appeal, the Seventh Circuit rejected the result reached by the state appellate court, reversed the district court, and held that the Amendment is preempted by the NLRA under the Machinists doctrine. See App. 46a-47a. The court acknowledged that Machinists preemption “is concerned with the process and not the substantive terms of the bargain,” whereas the Amendment “establishes a_ substantive requirement” rather than working a direct change to the process of bargaining and self-organization. App. 10 38a. And the court further recognized this Court’s holdings that “minimum labor standards,” which are not preempted by the NLRA, are defined as those that “affect union and nonunion employees equally, and neither encourage nor discourage the collective- bargaining processes that are the subject of the NLRA.’” App. 22a-23a (quoting Metro. Life, 471 U.S. at 755). Finally, the court acknowledged that the Amendment both “facially affects union and nonunion employees equally,” App. 23a, and in practice applies to both union and nonunion attendants because “not all room attendants in Cook County are unionized,” App. 32a. The court nevertheless held that the Amendment did not qualify as a minimum labor standard. The court reasoned that—although the Amendment applies to union and nonunion workers alike—it cannot set a “genuine minimum labor standard” because it “is not a statute of general application.” App. 23a. Accord- ing to the court, the Amendment’s “narrow scope of application,” to room attendants in Cook County hotels, “serves as a disincentive to collective bargaining,” App. 30a, and thereby runs afoul of the NLRA. For this conclusion, the Seventh Circuit relied on Chamber of Commerce v. Bragdon, 64 F.3d 497 (9th Cir. 1995). The court acknowledged that the Ninth Circuit has since repudiated Bragdon’s characterization of minimum labor standards as laws “applicable to all employees,” id. at 502. See App. 26a (noting holding of Associated ll Builders & Contractors of S. Cal., Inc. v. Nunn, 356 F.3d 979, 990 (9th Cir. 2004), that “state substantive labor standards * * * are not invalid simply because they apply to particular trades, professions, or job classifi- cations rather than to the entire labor market”). But the Seventh Circuit deemed the Bragdon approach “better reasoned” than the later decisions rejecting it. App. 26a. The court further recognized that a “series of cases,” including decisions of this Court, the Ninth Circuit, and the D.C. Circuit, had upheld workplace protection laws “that apply only to particular occu- pations, industries or categories of employers” against preemption challenges, but distinguished the instant case because it addressed a law limited “by location” as well as “by trade.” App. 25a-26a.’ In addition, the Seventh Circuit also reasoned that the Amendment does not qualify as a minimum labor standard because “minimum” “implies alow threshold.” App. 34a. According to the court, the Amendment’s protections do not comprise a “true minimum labor 9 « The Seventh Circuit purported to distinguish Fort Halifax, 482 U.S. 1; Dillingham Construction N.A., Inc. v. County of Sonoma, 190 F.3d 1034 (9th Cir. 1999); Viceroy Gold Corporation v. Aubry, 75 F.3d 482 (9th Cir. 1996); National Broadcasting Company v. Bradshaw, 70 F.3d 69 (9th Cir. 1995); and Washington Services Contractors Coalition v. District of Columbia, 54 F.3d 811 (D.C. Cir. 1995), on this ground. App. 25a-26a. 12 standard” because they are “higher” than those for other Illinois workers, App. 32a-33a; they are too “stringent,” App. 38a; and, in the court’s view, they “would be very difficult for any union to bargain for,” App. 35a. As aresu't, the court hypothesized, the man- dated rest breaks would “interfere” with room attendants’ pay and quota structure under respondent’s expired collective bargaining agreement, and the Amendment’s rebuttable presumption of retaliation would similarly undermine the dispute-resolution mechanisms set forth in that agreement. App. 40a-43a. REASONS FOR GRANTING THE PETITION In using Machinists preemption to invalidate a state workplace law applicable to union and nonunion employees alike, the Seventh Circuit broke from this Court’s definition of a “minimum labor standard” in Metropolitan Life and Fort Halifax. The Seventh Circuit’s redefinition of a “minimum labor standard” conflicts with both federal and state appellate court decisions, including a ruling by the Illinois Appellate Court rejecting the same preemption challenge to the same Illinois law. Moreover, the Seventh Circuit’s decision contributes significantly to uncertainty over the scope of state and local power to enact workplace protection laws, and it casts doubt on myriad of laws governing the workplace already on the books. Only this Court can impose much-needed clarity on this critical area of state and local lawmaking, and establish 13 definitively—notwithstanding the Seventh Circuit’s decision in this case, resurrecting a Ninth Circuit ruling whose reasoning that court has disavowed—-that federal law does not require States wishing to provide workplace protections to do so only with untailored, one-size-fits-all rules. I. Courts Are Divided Over Whether Targeted Minimum Labor Standards Are Preempted By The NLRA. | 1. The Seventh Circuit’s determination that the Amendment is not a “minimum labor standard” is impossible to reconcile with decisions of the Second, Ninth, and D.C. Circuits. These cases recognize that, to avoid preemption, state laws need only be general in the sense that they apply to union and nonunion workers alike (as all agree the Amendment does). See Metro. Life, 471 U.S. at 753; Fort Halifax, 482 U.S. at 19-20. Nothing in these cases limits the States’ ability to tailor workplace protections based on geographical and/or occupational differences. Indeed, in holding that the Amendment’s “narrow scope” prevented it from being a minimum labor standard, App. 30a, the Seventh Circuit recognized that “a series of cases” have held that regulations that “apply only to particular occupations, industries or categories of employers have survived preemption challenge[s],” App. 25a. But the court below relied on the Ninth Circuit’s decision in Chamber of Commerce v. 14 Bragdon, which it characterized as “better reasoned” than conflicting decisions that have rejected the Bragdon approach. App. 26a. Bragdon held that a county ordinance prescribing wage and benefit levels for private construction contractors was preempted under the Machinists doctrine. See 64 F.3d at 504. The Ninth Circuit reasoned that the ordinance was “incompatible with the goals of the NLRA” because it “provide[d] for specific minimum wages and benefits to be paid to each craft and only to those workers who are engaged in the specific construction projects covered by the Ordinance.” Jd. at 501, 502. In line with Bragdon, it was thus critical to the Seventh Circuit’s preemption analysis that the Amendment “lack[ed] * * * general application.” App. 29a. The court ultimately concluded that to survive preemption, a minimum labor standard must target substantially all of the labor market. See ibid. On this point—essential to the holding below—the Seventh Circuit’s decision is in square conflict with other decisions of the Ninth Circuit, as well as the rule in the Second and D.C. Circuits. First, although downplayed by the Seventh Circuit, see App. 28a-29a n.9, the Ninth Circuit itself has rejected the Bragdon analysis on which the decision below relied. Thus, in Dillingham Construction N.A., Inc. v. County of Sonoma, 190 F.3d 1034 (9th Cir. 1999), the court held that a law requiring payment of prevailing wages to apprentices on public construction 15 projects was a “minimum labor standard|[] immune from NLRA preemption.” Jd. at 1039; see also Viceroy Gold Corp. v. Aubrey, 75 F.3d 482, 489-490 (9th Cir. 1996) (overtime law applying only to miners not preempted); Nat’! Broad. Co., Inc. v. Bradshaw, 70 F.3d 69, 71-72 (9th Cir. 1995) (same for law applying only to broadcast employees). Subsequently, in Associated Builders & Contractors of Southern Califorina, Inc. v. Nunn, 356 F.3d 979 (9th Cir. 2004), the court expressly rejected Bragdon in holding that a law requiring contractors to pay registered apprentices on private construction projects certain wage rates based on their “craft and geographical area”—just like the ordinance challenged in Bragdon—was not Machinists preempted. Jd. at 983, 990-991. The court warned that “Bragdon must be interpreted in the context of Supreme Court authority and our other, more recent rulings on NLRA pre- emption,” which make clear that “the NLRA does not authorize us to pre-empt minimum labor standards simply because they are applicable only to particular workers in a particular industry.” Jd. at 990; accord ibid. (“It is now clear * * * that state substantive labor standards * * * are not invalid simply because they 16 apply to particular trades, professions, or job classifi- cations rather than to the entire labor market.”).° Not only does the Seventh Circuit’s decision part ways with current Ninth Circuit case law, but it is also inconsistent with the rule adopted by the Second and D.C. Circuits. In General Electric Company v. New York Department of Labor, 891 F.2d 25 (2d Cir. 1989), the Second Circuit upheld New York’s prevailing wage law against a claim that it was NLRA preempted because it was not universal in scope, applying only to public works contracts, see id. at 26, 27-28; see also Roundout Elec., Inc. v. NYS Dep’t of Labor, 335 F.3d 162, 169 (2d Cir. 2003) (declining to follow Bragdon). The Second Circuit adopted the reasoning of the district court, see id. at 27, that it “d{id] not matter that the coverage of the statute is limited.” Gen. Elec. Co. v. N.Y. State Dep’t of Labor, 698 F. Supp. 1093, 1098 (S.D.N.Y. 1988). As the district court had explained, “coverage of minimum wage statutes is rarely universal”; accordingly, that “the state ha[d] a rational reason for applying this statute to the employees of private contractors engaged in performing public work and for setting its minimum standards at the level it has selected” was sufficient to sustain the law. Ibid. It was similarly irrelevant that 2 v Although Nunn rejected Bragdon’s reasoning, it did not overrule Bragdon, see 556 F.3d at 990-991, adding to the confusion in the lower courts. 17 the prevailing wage law required minimum wages in excess of those applicable to other occupations: “The common thread in the Supreme Court’s ‘minimum labor standard’ concept is not a dictionary definition of ‘minimum,’ nor a requirement that the minimum standards be neutral in their effect on the cc. ‘ective bar- gaining process, but a judgement that the substantive rights which the state seeks to create are consistent with the ‘general legislative goals of the NLRA.’” Jd. at 1100 (quoting Metro. Life, 471 U.S. at 757). Likewise, in Washington Services Contractors Coalition v. District of Columbia, 54 F.3d 811 (D.C. Cir. 1995), the D.C. Circuit upheld labor legislation requir- ing only “contractors who employ 25 or more persons and perform food, janitorial, maintenance, or non- professional health care services” to retain a pred- ecessor’s employees for ninety days after taking over a service contract. Jd. at 813-814. In rejecting a Machin- ists preemption claim to this targeted iaw, the court held that the NLRA “does not preempt local regulation of any facet of the employment relationship, but rather only those laws that disturb the labor dispute resolution system established by the NLRA.” Jd. at 817 (emphasis in original). Because the law at issue was “substantive employee protective legislation having nothing to do with rights to organize or bargain collectively,” Machin- ists preemption did not apply. Jd. at 818. 18 Thus, the result under Bragdon and in the Seventh Circuit would have been different in either the Second or D.C. Circuits; the fact that legislation applied only to certain workers would have subjected it to Machinists preemption in those cases. The Third Circuit has declined to follow Bragdon on this point as well, as have the California courts. See The St. Thomas-St. Jokn Hotel & Tourism Ass’n, Inc. v. Gov’t of the United States Virgin Islands, 218 F.3d 232, 244 (3d Cir. 2000); S. Cal. Edison Co. v. Pub. Utils. Comm’n, 140 Cal. App. 4th 1085, 1102-1103 (2006).* 4 Beyond relying on Bragdon, the Seventh Circuit supported its view that only laws applying to substantially all of the labor market qualify as minimum labor standards with citations to Barnes v. Stone Container Corporation, 942 F.2d 689 (9th Cir. 1991), and Hull v. Dutton, 935 F.2d 1194 (11th Cir. 1991). See App. 24a-25a. But Barnes did not involve a challenge to a minimum labor standard, but rather whether an individual could invoke Montana’s Wrongful Discharge Act during an impasse in collective bargaining negotiations. See 942 F.2d at 693. And in Hull, the challenged Alabama statute applied only to the State’s own employees, making it “an expression of the state’s power as an employer to regulate relations with its employees, rather than the state’s authority to regulate in the interest of the health, welfare, and mores of its citizens.” 935 F.2d at 1198-1199. The Seventh Circuit’s misreading of these cases is additional evidence of confusion over the meaning of the term “minimum labor standard.” 19 2. The decision below makes an effort to distinguish some of the cases in the foregoing line by observing that the Amendment is limited geographically as well as by trade, but this observation is of no legal moment and does nothing to reconcile the Seventh Circuit with other courts. Such geographic targeting is a common and necessary feature of laws in Illinois and elsewhere. The Amendment, as originally drafted, would have applied statewide. See App. 9la. But, as the Seventh Circuit itself has recognized, Chicago and Cook County differ fundamentally from the rest of the State. See Hearne v. Bd. of Educ. of City of Chicago, 185 F.3d 770, 774 (7th Cir. 1999) (“the Illinois statute books are riddled with laws that treat communities with more than 500,000 residents—i.e., Chicago—differently from smaller ones”). The Amendment thus was limited to Cook County after downstate hotels successfully de- monstrated that Cook County’s hotel industry differed fundamentally from that in other areas of the State. See App. 94a-95a. The Illinois legislature appropriately “concluded from such evidence that [the Amendment] would protect hotel room attendants from overwork in the jurisdiction where the majority of such employees would be impacted and in the jurisdiction best positioned to absorb the costs of [the Amendment’s] new regulations.” I[bid. Nor is Cook County merely “one of Illinois’s 102 counties,” as the Seventh Circuit described it. App. 26a. 20 With 5.3 million residents (forty-three percent of Illinois’s population), Cook County is among the largest counties in the nation and has a population exceeding that of twenty-nine States. See http://quickfacts.cen sus.gov/qfd/states/17/17031.htm] (last visited Jun. 26, 2009) (Cook County); http://www.census.gov/statab/ ranks/rank01.html (last visited Jun. 26, 2009) (State rankings). Given Cook County’s substantial population and concentration of hotels, the Seventh Circuit’s concern about the geographic scope of the Amendment is nonsensical. That leaves only the fact that the Amendment does not apply statewide, but that is logically immaterial. If state subdivisions may pass workplace protection laws—as they routinely do, see infra pp. 39-40, it is inconceivable that a state law limited to an area with a larger population risks any greater interference with federal labor law. 3. Finally, the decision below not only is irrecon- cilable with the rulings of three circuit courts, but it also creates a conflict between state and federal law within the Seventh Circuit. The Seventh Circuit invalidated the Amendment notwithstanding that the Illinois Ap- pellate Court had recently upheld it against an identical preemption challenge. These conflicting rulings leave petitioner Shannon, who is charged with enforcing the Amendment, see 820 Ill. Comp. Stat. 140/6 (2008), in an untenable sitvation requiring this Court’s intervention. 21 The Illinois Appellate Court’s decision is res judi- cata as to every hotel belonging to the Association that brought that case. See, e.g., Rein v. David A. Noyes & Co., 665 N.E.2d 1199, 1204 (Ill. 1996); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’! Planning Agency, 322 F.3d 1064, 1082 «9th Cir. 2003); Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir. 1977).° And while Illinois courts must follow this Court on issues of federal preemption, they are not bound by the Seventh Circuit’s preemption decisions, see, e.g., Weiland v. Telectronics Pacing Sys., Inc., 721 N.E.2d 1149, 1153-1154 (ill. 1999); Hinterlong v. Baldwin, 720 N.E.2d 315, 323 (Ill. App. Ct. 1999), meaning that even non-Association members (other than respondent) remain subject to enforcement actions. For these entities, Ludwig is stare decisis in the Circuit Court of Cook County, the only jurisdiction where the Amendment applies. See, e.g., People v. Carpenter, 888 N.E.2d 105, 111 (Ill. 2008); Delgado v. Bd. of Election Comm’rs of City of Chicago, 865 N.E.2d 183, 188 (Ill. 2007). As a practical matter, however, petitioner Shannon is reluctant to flout the 5 The Seventh Circuit’s rejection of Ludwig does not chang this result. See, e.g., Rhoades uv. Casey, 196 F.3d 592, 602 (5th Cir. 1999); Bd. of Trs. of Carpenters Pension Fund for N. Cal. v. Reyes, 688 F.2d 671, 673 (9th Cir. 1982). 22 holding of the Seventh Circuit. As a result, she is inhibited from performing her statutory duty to enforce the Amendment. Illinois is not the only State in which a state and federal court are at odds over whether a law must be broadly applicable to constitute a “minimum labor standard.” For example, although the Ninth Circuit has yet to overrule Bragdon expressly, that case has been squarely rejected by California’s state appellate court. In upholding a prevailing wage requirement limited to workers on one type of construction project against a Machinists challenge, the California Court of Appeal “decline[d] to follow Bragdon,” which the court described as “inconsistent” with this Court’s “rule * * * that state regulation of the substantive terms of employment * * * is not subject to Machinists pre- emption.” S. Cal. Edison, 140 Cal. App. 4th at 1103- 1104 (citing Metro. Life, 471 U.S. at 758). Thus state officials face a legal dilemma: is their authority to regulate workplace standards limited to laws applicable to substantially all of the labor market—as Bragdon and the Seventh Circuit hold—or may they, as their own state courts have determined, target workplace protections to categories of workers who really need them and employers that can best tolerate them. This intra-State uncertainty is an additional reason why this Court should grant certiorari review. 23 II. The Decision Below Is Incompatible With Decisions Of This Court. After bemoaning that this Court’s “guidance” on what constitutes a “minimum labor standard” is “sparse,” App. 22a, the Seventh Circuit proceeded to fundamentally alter the concept. According to the court, the Amendment does not qualify as a “minimum labor standard” because it is “not a statute of general application,” App. 23a, but rather is targeted to a particular occupation in a particular locale. The court further sought to bolster its holding by characterizing the statute as exceeding “a low threshold” and as unduly “stringent.” App. 34a, 38a. But on top of breaking from other circuits, the Seventh Circuit’s doctrinal innovations are incompatible with this Court’s cases, which make clear that the term “minimum labor standard” merely denotes a substantive labor standard applicable to union and nonunion workplaces alike. Even the Seventh Circuit acknowledged that the Amendment easily satisfies this definition. See App. 23a (Amendment “facially affects union and nonunion employees equally”). The court should have gone no further. 1. In Metropolitan Life, this Court rejected an NLRA preemption challenge to a Massachusetts law requiring minimum mental-healthcare benefits for all employees, including those subject to benefit plans negotiated pursuant to collective-bargaining agree- 24 ments. See 471 U.S. at 727, 758. The Court expressly disapproved the view that required-benefit laws like Massachusetts’s were preempted because they “in effect mandate terms of collective-bargaining agreements,” and thereby remove “the choice of terms” in such agreements from “the free play of economic forces.” Id. at 748. As the Court explained, “[t]he NLRA is concern- ed primarily with establishing an equitable process for determining terms and conditions of employment, and not with particular substantive terms of the bargain that is struck.” Jd. at 753. In addition, there generally is “no incompatibility” “between federal! rules designed to restore the equality of bargaining power[] and state or federal legislation that imposes minimal substantive requirements on contract terms negotiated between parties to labor agreements.” Id. at 754. This Court thus determined that Congress did not intend the NLRA to displace state laws that are “un- related * * * to the processes of bargaining or self- organization.” Metro. Life, 471 U.S. at 756. Rather, States are free to enact “minimum labor standards” pursuant to their “‘broad authority under their police powers to regulate the employment relationship to protect workers.’” Jd. at 755, 756 (quoting DeCanas, 424 U.S. at 356). “Minimum labor standards,” the Court further explained, are laws that “affect union and nonunion employees equally,” and, thus, they are not preempted under Machinists because they “are not laws 25 designed to encourage or discourage employees in the promotion of their interests collectively” but, instead, “‘sive specific minimum protections to individual workers and * * * ensure that each employee * * * receive[s]’” statutorily mandated protections. Jd. at 755 (quoting Barentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (emphasis in original)). 2. Subsequent to Metropolitan Life’s holding that state “minimum labor standards” are not preempted by the NLRA, this Court in Fort Halifax made clear that a state law need not be applicable to substantially all of the labor market to qualify as such a standard, for the Court in that case sustained a narrowly targeted statute against an NLRA preemption challenge. The Court upheld a Maine law requiring an employer that termin- ates operations at a plant with one hundred or more employees (or relocates those operations more than one hundred miles away) to provide severance pay to any employee who had worked in the plant for more than three years. See 482 US. at 4 n.1, 5, 23. Thus, the state statute was not broadly applicable; it applied only to larger plant closings, distant relocations, and longer- tenured employees. Even though the law was limited in its application, this Court upheld the Maine statute as a “minimum labor standard” akin to the one sustained in Metropolitan Life. Like the Massachusetts law, Maine’s plant-closing law “provide[d] protections to individual 26 union and nonunion workers alike, and thus ‘neither encourage([d] nor discouragel[d] the collective-bargain- ing processes that are the subject of the NLRA.’” 482 U.S. at 20-21 (quoting Metro. Life, 471 U.S. at 755). The Court acknowledged that “the Maine statute glave] employees something for which they otherwise might have to bargain,” but the same could be said for almost any workplace law, and “‘there is nothing in the NLRA * * * which expressly forecloses all state regulatory power with respect to those issues * * * that may be the subject of collective bargaining.’” Id. at 21- 22 (quoting Malone v. White Motor Corp., 435 U.S. 497, 504-505 (1978)); see also id. at 21 (“the mere fact that a state statute pertains to matters over which the parties are free to bargain cannot support a claim of pre- emption”). In short, the Maine statute was “‘a valid and unexceptional exercise of the [State’s] pclice power.’” Id. at 22 (quoting Metro. Life, 471 U.S. at 758) (alteration in original). 3. Notwithstanding the actual holdings of Metropolitan Life and Fort Halifax, the Seventh Circuit, like the Ninth Circuit in Bragdon, seems to have been led astray by some of the more general language in those decisions. The court below focused on the use of the phrase “laws of general application” in Metropolitan Life to describe minimum labor standards, App. 23a (emphasis in original), and the description of such standards as “minimal” and as a “backdrop” to negoti- 27 ations in Metropolitan Life and Fort Halifax, respect- ively, App. 34a. Contrary to the Seventh Circuit’s approach, however, nothing in this Court’s decisions indicates that these references were intended to bar States from adopting anything but “low threshold” or untailored laws that apply broadly to all sectors of the labor market. As explained, Metropolitan Life itself held that “minimum labor standards” are those that “affect union and nonunion employees equally.” 471 U.S. at 755. And the Court’s reference to a “law of general appli- cation,” id. at 750 n.28, 753, was derived from New York Telephone Company v. New York State Department of Labor, 440 U.S. 519 (1979), where a plurality of the Court used the phrase to distinguish laws targeting unionized workplaces, see id. at 533 (“Section 591(1) is not a ‘state la[w] regulating the relations between employees, their union and their employer,’ as to which the reasons underlying the pre-emption doctrine have their ‘greatest force.’ Instead * * * the statute is a law of general applicability.”) (internal citation omitted). This view is consistent with this Court’s approval in Fort Halifax of a narrowly-targeted law and with the State’s recognized police power authority to regulate the employment relationship. The Seventh Circuit sought to distinguish the Amendment from Maine’s plant- closing law by claiming that the latter, although admittedly not universally applicable, “still had a very 28 broad application.” App. 24a. But the court made no effort to explain why aplant-closing law targeted to only a limited class of large businesses in a very small State is more broadly applicable than a law targeted to one occupation in a county that is larger than 29 States. Rather, it reasoned merely that the Amendment’s limitation to one Illinois county “serves as a dimin.- centime to collective bargaining” and “makes it possible to target union-heavy counties (or union-light counties), and thus reward (or punish) union activit[ies].” App. 30a, 32a. But this Court rejected precisely these claims in Fort Halifax. There, the Court noted that “[t)h[e] argument—that a State’s establishment of minimum substantive labor standards undercuts collective bargaining—was considered and rejected in Metropo!- itan Life,” 482 U.S. at 20, thus doing away with the Seventh Circuit’s concern about “disincentivies]” to collective bargaining. And as for the suggestion that the Amendment might affect in practice union workplaces more heavily than nonunion, Fort Halifax also rejected an argument that the Maine statute was preempted because it “dlid] not fall equally upon union and non- union employees.” Jd. at 22 n.15. Indeed, the idea that a workplace standard is preempted because it affects a trade or locale meeting some undefined threshold of unionization not only con- flicts with this Court’s precedents but would make it impossible for States to set workplace standards in any 29 industry with a significant union presence, even when large numbers of the affected workforce were non- unionized. This result, which “penalizes] workers who have chosen to join a union by preventing them from benefitting from state labor regulations imposing minimal standards on nonunion employers,” “would turn the policy that animated the [NLRA] on its head.” Metro. Life, 471 U.S. at 756. The Seventh Circuit’s ap- poach also is unworkable in practice, for it offers no meaningful standard for determining when an industry or locale is sufficiently “union-heavy” or “union-light” to trigger federal preemption. Thus, the Seventh Cir- cuit’s reliance on the phrase “law of general applica- tion” to invalidate the Amendment because of its targeted scope is inconsistent with this Court’s holdings and their underlying rationales. 4. The Seventh Circuit’s decision also resulted from a lack of clarity in the term “minimum labor standard” itself. Pointing to this Court’s characterization of mini- mum labor standards as involving “minimal substantive requirements,” App. 34a, the lower court held that the Amendment “does not qualify as a ‘minimum’ labor standard” because “‘[mlinimum,’ * * * implies a low threshold,” whereas the Amendment “establishes terms of employment that would be very difficult for any union to bargain for,” App. 34a-35a; see also App. 38a 30 (“[t]he more stringent a state labor substantive standard, the more likely it is that the state law interferes with the bargaining process”). But this interpretation of the phrase “minimum labor standard” is incompatible with the rationales of Metropolitan Life and Fort Halifax. Speculation about whether a statutorily mandated benefit would have been “difficult” to achieve in bargaining played no role in the Court’s analysis in these cases. In fact, the nature of the benefits at issue refutes the Seventh Circuit’s view that only insubstantial state regulations may escape NLRA preemption: neither the severance- pay provision in Fort Halifax (requiring one week’s pay for each year of employment to all employees who had worked more than three years, see 482 U.S. at 4n.1) nor the mental-healthcare benefit in Metropolitan Life (requiring coverage for “‘mental or nervous conditions’” that provides sixty days per year in a mental hospital and treats confinement in a general hospital “‘no differently] than * * * any other illness,’” 471 U.S. at 730 n.11) (quoting statute), may fairly be characterized as a law with “minimal substantive impact” on collective bargaining agreements, App. 34a.° 6 Indeed, the Metropolitan Life Court cited with approval myriad state mandated-benefit laws, none of which satisfy the Seventh Circuit’s “low threshold” requirement. See 471 U.S. at 730 n.10 (describing state laws requiring “alcoholism (continued...) 31 Equally misplaced is the Seventh Circuit’s view that the Amendment is not a “true minimum labor stand- been” because the Illinois One Day Rest in Seven Act, which the Amendment modified, “already established a minimum labor standard for breaks.” App. 32a-33a. Under the court’s analysis, once a State sets a labor standard that applies broadly, it may never adopt different standards later for occupations warranting greater protection. This is a radical and novel limitation on the States’ “great latitude” and “‘broad authority under their police powers to regulate the employment relationship to protect workers,’” including by respond- ing to unique and changing workplace conditions. Metro. Life, 471 U.S. at 756 (quoting DeCanas, 424 U.S. at 356). It also is an unwise limitation, for it favors one- size-fits-all legislation over more carefully tailored law- making. Rather, as the Court’s endorsement of sub- stantial state workplace regulation in Metropolitan Life and Fort Halifax makes plain, the term “minimum labor standard” simply means a floor from which individuals and unions must negotiate upwards. ’ (...continued) coverage,” “certain birth-defeci coverage,” “outpatient kidney- dialysis coverage,” and coverage for “reconstructive surgery for insured mastectomies”). Tosay the least, these substantial and costly benefits might well be difficult for union negotiators to achieve in bargaining. 32 Not only is the Seventh Circuit’s rule inconsistent with this Court’s decisions, but it is unworkable. The court set forth no standard for determining whether a workplace law is too “stringent” or provides a benefit that would be “very difficult for any union to bargain for.” App. 35a-38a. As a result, the rule is an invitation to prohibited judicial second-guessing of economic legislation. See Exxon Corp. v. Governor of Md., 437 U.S. 117, 124 (1978); New Orleans v. Dukes, 427 US. 297, 303 (1976) (per curia). 5. The Seventh Circuit also broke from this Court’s case law in suggesting that federal law preempts workplace regulations without an “opt-out” for labor agreements setting different standards. See App. 33a. The court concluded that “when the parties are not free to devise their own arrangement preemption applies because the statute intrudes on the collective bargaining process.” App. 34a. But this runs afoul of Fort Halifax, where the Court was careful to point out that the Massachusetts statute in Metropolitan Life “permitted] no collective bargaining” but nevertheless “escaped] NLRA pre-emotion.” 482 U.S. at 22 (emphasis in orig- final). 6. Finally, the court below claimed that preemption was necessary because the Amendment “interfered]” with the terms of respondent’s expired collective bargaining agreement, App. 43a, both because its cause of action for retaliation was inconsistent with the 33 agreement’s dispute-resolution mechanism, and because its mandated breaks supposediy undermined the room- cleaning quota system established hy the agreement, see App. 40a-43a. But this Court’s holdings create no ex- caption based on the happenstance that some set of employees somewhere in the jurisdiction are already subject to a collective bargaining agreement covering the same topic. See Fort Halifax, 482 U.S. at 21-22 (“the mere fact that a state statute pertains to matters over which the parties are free to bargain cannot support a claim of pre-emotion, for ‘there is nothing in the NLRA * * * which expressly forecloses all state regulatory power with respect to those issues * * * that may be the subject of collective bargaining’”) (quoting Malone, 435 U.S. at 504-505 (1978) (ellipses in orig- final)). In fact, such an exception would be nonsensical, for it would effectively preclude unionized employees from benefitting from state labor protections imposing minimum standards on nonunion employers, something the NLRA clearly does not contemplate. See Lividas, 512 U.S. at 130 (“Denying represented employees basic safety protections might ‘encourage’ collective bargain- in over that subject * * *, but we have never suggested that labor law’s bias toward bargaining is to be served by forcing employees or employers to bargain for what they would otherwise be entitled to as a matter of course.”). Rather, the fact that, in some instances, a 34 new state law will cause employers and unions to go back to the bargaining table is fully consistent with the NLRA, which envisions bargaining with the various state workplace regulations as a floor or “backdrop.” Metro. Life, 471 U.S. at 757. * *K * Thus, for several reasons, the Seventh Circuit’s decision is impossible to reconcile with this Court’s decisions. Its misapplication of the terms “law of general application” and “minimum labor standard” threaten added confusion in this important area of federal-state relations. Worse, the decision calls into question numerous state and local workplace standards already on the books, seeinfra pp. 35-41, and it is likely to chill legislatures from enacting necessary new ones. This Court’s certiorari review is needed to resolve this uncertainty about the States’ authority to regulate the workplace and to clarify language used in its previous decisions controlling this area of law. 35 II. The Issue Presented Is One Of Critical Importance, And The Decision Below Casts Doubt On Many Existing Workplace Protection Laws. In cases “where federal law is said to bar state action in fields of traditional state regulation,” this Court “always” “works] on the assumption that the historic police powers of the States [are] not to be superceded by [federal law] unless that was the clear and manifest purpose of Congress.” Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1997) (internal quotations and citations omitted); accord Fort Halifax, 482 U.S. at 21 (“pre-emotion should not be lightly inferred * * * since the establishment of labor standards falls within the traditional police power of the State”). Not withstand- in the Court’s conclusion, applying this presumption against preemption, that Congress did not intend the NLRA “to disturb the myriad state laws * * * that set minimum labor standards, but were unrelated in any way tothe processes of bargaining or self-organization,” Metro. Life, 471 U.S. at 756, the decision below calls into question a wide variety of state and local laws regulating the nation’s workplaces. The features of the Amendment on which the Seventh Circuit relied to find preemption are common to many workplace statutes, and the court provided no principled basis to distinguish Illinois’s statute from 36 many such laws. As a result, the Seventh Circuit’s decision, if allowed to stand, will encourage litigation over the validity of existing laws and inhibit state and local governments from enacting lawful reforms that their citizens favor. It also will require state legislated- urea to forego sensible targeting of workplace regular- tigons to those employees most in need of certain protections or those employers most able to bear the additional cost of compliance. Instead, state legislatures will be forced to craft “one-size-fits-all” regulations rather than risk costly litigation and the possibility of judicial invalidation. Workplace legislation always has targeted particular occupations and locales. See, e.g., Holden v. Hardy, 169 U.S. 366, 389-390 (1898) (upholding work hours law covering only mine workers). Indeed, many modern state workplace safety laws establish special protec- tigons for particular occupations and _indus- tries—typically, as occurred here, in response to identified conditions peculiar to those jobs. See App. 86a-874 (noting unique workplace stresses on hotel room attendants as result of “quota system” and increased work intensity). On the precise issue here—rest and meal breaks—many States have requirements that vary by job description, reflecting differences in the need for and feasibility of taking breaks. See, e.g., 7 Colo. Code Regs. § 1103-1(8) (employees in four industries—retail and _ trade, 37 commercial and support service, food and beverage, and health and medical—must receive a paid ten-minute rest break for each four-hour work period and a thirty-minute meal break after five hours); Neb. Rev. Stat. § 48-212 (2008) (employees in assembly plants, workshops, and other mechanical establishments must receive thirty-minute meal break during each eight-hour shift and be allowed to leave the premises during this break); N.Y. Lab. Law § 162 (McKinney 2009) (mandating thirty-minute meal break for most employees whose shifts exceed six hours, but requiring sixty-minute meal break for factory workers); 43 Pa. Cons. Stat. Ann. § 1301.207(c) (West 2009) (seasonal farm workers may not work more than five hours without meal or rest period); Wis. Stat. Ann. § 103.85(2) (West 2009) (exempting janitors, security personnel, persons involved in the manufacture or distribution of dairy products, and “persons employed in bakeries, flour and feed mills, hotels, and restaurants” from Wisconsin’s One Day Rest in Seven Act). Similarly, pretections against mandatory overtime often target particular occupations, like nurses and miners, seen as vulnerable to overwork. See, e.g., 210 Ill. Comp. Stat. 85/10.9(b) (2008) (barring hospitals from requiring nurses to work mandatory overtime); Me. Rev. Stat. Ann. tit. 26, § 603(5) (2009) (nurses cannot be disciplined for refusing to work overtime, and must be allowed at least ten hours of off-duty time 38 immediately following twelve or more consecutive hours of worktime); R.I. Gen Laws § 23-17.20-3(b) (2009) (in no case will nurse be required to work longer than twelve hours except when there is an unforeseeable emergency); Wash. Rev. Code § 49.28.140 (West 2009) (nurses may not be required to work overtime); W. Va. Code Ann. § 21-5F-3 (West 2009) (no nurse may be forced to work overtime except in cases where patient’s safety is at risk); Alaska Stat. § 23.10.410 (2009) (with certain exceptions, miner may not be employed in underground mine or work more than ten hours in twenty-four hours); Colo. Rev. Stat. Ann. § 8-13-102 (West 2009) (mine workers may be forced to work more than eight hours only if there is written work plan outlining conditions under which longer workday would be permitted and employees are given reasonable notice of proposed increase in work schedule); Mo. Ann. Stat. § 290.020 (West 2009) (mining employees may not be required to work longer than eight hours). It is likewise common for state standards to apply differently in different geographic locations. Generally, such measures provide heightened protections for workers in urban areas, in light of higher costs of living or different industry or economic conditions, as was true here. See App. 94a-95a (Amendment “protect[s] hotel room attendants from overwork in the jurisdiction where the majority of such employees would be impacted and in the jurisdiction best positioned to 39 absorb the costs of [the] new regulations.”). The proto- typical example is prevailing wage statutes, long used by States to establish minimum pay for public projects on a county-by-county (as well as trade-by-trade) basis, with higher rates for workers in urban than rural areas. See, e.g., 820 Ill. Comp. Stat. 130/1, 2 (2008) (setting prevailing wage as prevailing hourly rate including fringe benefits for work of similar character in same locality); accord Ind. Code Ann. § 5-16-7-1 (West 2009); Tenn. Code Ann. § 12-4-405 (West 2009); Tex. Gov’t Code Ann. § 2258.021(a)(1) (2009); Wis. Stat. Ann. § 103.49(d)(1) (West 2009).’ Local ordinances also rou- tinely provide different substantive workplace rules. See, e.g., http://www.no-smoke.org/pdf/100ordlisttabs. pdf (last visited Jun. 26, 2009) (chart collecting U.S. local smoke-free workplace ordinances). In addition, while the Seventh Circuit found fault with the Amendment’s anti-retaliation provision, such provisions are routinely used to promote improved compliance in the face of limited enforcement resources. For example, state and local laws often provide for More recently, state “living wage” laws have set minimum pay levels by geographic region. See, e.g., Md. Procure. Regs. 21.11.10.01 § (B)(4), (5) (2009), and http://www.dllr.state. md.us/labor/livingwagefaqa.shtml#¥15 (last visited Jun. 26, 2009) (minimum wage for employees under certain state services contracts is nearly three dollars an hour higher for workers in urban counties). 40 rebuttable presumptions of retaliation against workers who assert their rights. See, e.g., Ariz. Rev. Stat. Ann. § 23-364(B) (2009) (adverse action within ninety days of assertion of minimum wage law rights “raise[s] a presumption that such action was retaliation, which may be rebutted by clear and convincing evidence that such action was taken for other permissible reasons”); NJ. Stat. Ann. § 34:20-9 (West 2009) (rebuttable presumption arises upon adverse action within ninety days of asserting rights under law protecting against independent contractor classification in construction); San Diego, Cal., Municipal Code § 22.4230 (2005) (same for adverse action within ninety days of providing information toward or cooperating in compliance investigation); Santa Fe, N.M., Municipal Ordinance 28-1.6(B) (same for adverse action within sixty days of asserting or communicating information regarding rights); S.F., Cal., Admin. Code § 12W.7 (same for adverse action within ninety days of filing complaint, cooperating with investigation, opposing any unlawful practice, or informing person of rights). Likewise, while the Seventh Circuit held that the Amendment's treble damages provision “can in no sense be considered ‘minimal,’” App. 37a, many States require treble damages or similarly substantial penalties to secure compliance with their minimum wage and workplace safety laws. See, e.g., Ariz. Rev. Stat. Ann. § 23-364(G) (2009) (requiring mandatory treble 4] damages for mini-mum wage violations plus daily penalties for retaliation against workers seeking to enforce their rights); Ohio Const. Art. II, § 34a (same); Mass. Gen. Laws. Ann. ch. 149, § 27 (West 2008) (treble damages for minimum wage violations); Wis. Stat. Ann. § 103.96(2) (West 2008) (triple backpay for willful violations of anti-retaliation provisions under migrant worker protection law). * * * The ruling below calls into question these and other substantive state and local laws governing the work- place. This Court’s intervention thus is essential to resolve the lower courts’ uncertainty over the scope of the States’ police power in this critical area of state regulation. 42 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. RICHARD G. MCCRACKEN LisA MADIGAN PAUL L. MORE Attorney General Davis Cowell & Bowe, LLP of Illinois 595 Market St., Ste. 1400 MICHAEL A. ScoDRO* San Francisco, California Solicitor General 94105 JANE ELINOR NotTz (415) 597-7200 Deputy Solicitor General WESLEY KENNEDY CaRL J. ELITz N. ELIZABETH REYNOLDS Ass’t Attorney General Allison Slutsky & 100 West Randolph Street Kennedy PC Chicago, Illinois 60601 230 W. Monroe, Ste. 2600 (312) 814-3698 Chicago, Illinois 60606 (312) 364-9400 * Counsel of Record JUNE 2009 la APPENDIX A In the United States Court of Appeals For the Seventh Circuit No. 07-3377 520 SOUTH MICHIGAN AVENUE ASSOCIATES, LTD., d/b/a THE CONGRESS PLAZA HOTEL & CONVENTION CENTER, Plaintiff-Appellant, Vv. CATHERINE SHANNON, Director of the Illinois Department of Labor, Defendant-Appellee, and UNITE HERE LOCAL 1, Intervenor-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 4552 — Joan Humphrey Lefkow, Judzge. Argued Feb. 19, 2008. Decided Dec. 15, 2008. Rehearing En Banc Denied Jan. 28, 2009 Before MANION, KANE, and TINDER, Circuit Judges. MANION, Circuit Judge. 520 S. Michigan Avenue Associates. Ltd., doing business as The Congress Plaza Hotel & Convention Center (“Congress 2a Plaza”), sued the Director of the Illinois Department of Labor (“Illinois”), seeking a declaratory judgment that Illinois statute 820 ILCS 140/3.1, the Hotel Room Attendant Amendment (“Attendant Amendment”) to the One Day Rest in Seven Act, 820 ILCS 140/1 et seq., is unconstitutional. Unite Here Local 1, a labor union, intervened and together with Illinois moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The district court granted the defendant’s and intervenor’s motions to dismiss, rejecting Congress Plaza’s arguments that the Attendant Amendment was preempted by the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., and violated its due process and equal protection rights. Congress Plaza appeals. Because the Attendant Am- endment is preempted by the NLRA, we reverse. iB Congress Plaza is located on Michigan Avenue in Chicago, Illinois, in Cook County. Congress Plaza, employs, among others, room attendants who clean guest rooms. The Unite Here Local 1 union (“Unite Here”) represents the approximately 130 room attend- ants working at Congress Plaza, as well as several hundred room attendants working at other Cook Coun- ty hotels. As of the date of oral argument, Congress Plaza and Unite Here’s latest collective bargaining agreement (“CBA”) had expired on December 31, 2002. Since June 2003, Unite Here members have engaged in a work stoppage while negotiating a new CBA. Congress Plaza has continued to abide by the terms of 3a the expired CBA, requiring a work day of eight productive hours and providing meals free of charge to its room attendants, along with clean and sanitary facilities. Congress Plaza also customarily provides one half-hour unpaid lunch break. In the midst of Congress Plaza’s negotiations with Unite Here, the Illinois legislature passed the Hotel Rooin Attendant Amendment (“Attendant Am- endment”) to the One Day Rest in Seven Act. Tire One Day Rest in Seven Act was originally enacted in July 1935 and currently provides that “[e]very employer shall allow every employee except those specified in this Section at least twenty-four consecutive hours of rest in every calendar week in addition to the regular period of rest allowed at the close of each working day.”* 820 1 . - , os . Under current law, Illinois exempts seven categories of employees from the mandated rest day: “(1) Part-time employees whose total work hours for one employer during a calendar week do ‘not exceed 20; and (2) Employees needed in case of breakdown of machinery or equipment or other emergency requiring the immediate services of experienced and competent Jabor to prevent injury to person, damage to property, or suspension of necessary operation; and (3) Employees employed in agriculture or coal mining; and (4) Employees engaged in the occupation of canning and process- ing perishable agricultural products, if such employees are employed by an employer in such occupation on a seasonal basis and for not more than 20 weeks during any calendar year or 12 month period; and (5) Employees employed as watchmen or (continued...) 4a ILCS 140/2. The One Day Rest in Seven Act further provides: “Every employer shall permit its employees who are to work for 7 1/2 continuous hours or longer, except those specified in this Section, at least 20 minutes for a meal period beginning no later than 5 hours after the start of the work period.”* 820 ILCS 140/3. The section mandating a 20-minute meal period “does not apply to employees for whom meal periods are established through the collective bargaining process.” Id. , (...continued) security guards; and (6) Employees who are employed in a bonafide executive, administrative, or professional capacity or in the capacity of an outside salesman, as defined in Section 12(a)(1) of the federal Fair Labor Standards Act, as amended, and those employed as supervisors as defined in Section 2(11) of the National Labor Relations Act, as amended; and (7) Employees who are employed as crew members of any uninspected towing vessel, as defined by Section 2101(40) of Title 46 of the United States Code, operating in any navigable waters in or along the boundaries of the State of Illinois.” 820 ILCS 140/2. 9 “This Section does not apply to employees who monitor individuals with developmental disabilities or mental illness, or both, and who, in the course of those duties, are required to be on cal] during an entire 8 hour work period; however, those employees shall be allowed to eat a meal during the 8 hour work period while continuing to monitor those individuals.” 820 ILCS 140/3. 5a The Attendant Amendment to the One Day Rest in Seven Act provides, in full: § 3.1. Hotel room attendants. (a) As used in this Section, “hotel room attendant” means a person who cleans or puts in order guest rooms in a hotel or other establishment licensed for transient occu- pancy. (b) This Section applies only to hotels and other establishments licensed for transient occupancy that are located in a county witha population greater than 3,900,000.° (c) Notwithstanding any other provision of law, every hotel room attendant shall receive a minimum of two 15-minute paid rest breaks and one 30-minute meal period in each workday on which the hotel room attendant works at least 7 hours. An employer may not require any hotel room attendant to work during a break period. . Only one county out of the 102 counties in Illinois — Cook County — has a population of more than three million people. As of the 2000 census, Cook County’s population was 5,376,741. See http://illinoisgis.ito.state.il.us /census2000/county_cersus. asp?ct=PO0O010001 (last visited August 15, 2008}. DuPage County has the next highest population base, but as of 2000, not even one million people resided there. /d. 6a (d) Every employer of hotel room attendants shall make available at all times a room on the employer’s premises with adequate sea- ting and tables for the purpose of allowing hotel room atte.idants to enjoy break periods in aclean and comfortable environment. The room shall have clean drinking water pro- vided without charge. (e) Each employer of hotel room attendants shall keep a complete and accurate record of the break periods of its hotel room attend- ants. (f) An employer who violates this Section shall pay to the hotel room attendant 3 times the hotel room attendant’s regular hourly rate of pay for each workday during which the required breaks were not provided. (g) It is unlawful for any employer or an employer’s agent or representative to take any action against any person in retaliation for the exercise of mghts under this Section. In any civil proceeding brought under this subsection (f), if the plaintiff establishes that he or she was employed by the defendant, exercised rights under this Section, or alleged in good faith that the defendant was not complying with this Section, and was thereafter terminated, demoted, or otherwise penalized by the defendant, then a rebuttable 7a presumption shall arise that the defendant’s action was taken in retaliation for the exercise of rights established by this Section. To rebut the presumption, the defendant must prove that the sole reason for the termination, demotion, or penalty was a legitimate business reason. (h) In addition to the remedies provided in Sections 6 and 7, a person claiming violation of this Section shall be entitled to all remedies available under law or in equity, including but not limited to damages, back pay, reinstate- ment, or injunctive relief. Any person termin- ated in violation of this Section shall recover treble his sv her lost normal daily compen- sation and fringe benefits, together with interest thereon, and any consequential damages suffered by the employee. The court shall award reasonabie attorney’s fees and costs to a prevailing plaintiff in an enforcement action under this Section. 820 ILCS 140/3.1. After the Illinois legislature passed the Atten- dant Amendment and the governor signed it into law, the Illinois Hotel and Lodging Association filed a declaratory judgment action in state court against the Director of the Illinois Department of Labor, seeking to have the Attendant Amendment declared uncon- stitutional. The state trial court granted the Illinois 8a Department of Labor summary judgment, concluding that the Attendant Amendment was not preempted, and that the Attendant Amendment did not violate the Illinois Constitution’s prohibition on special legislation or the plaintiff's right to equal protection. Ill. Hotel & Lodging Ass’n v. Ludwig, No. 05CH13796, *10 (Circuit Court of Cook County, Illinois). The Illinois appellate court affirmed. See Ill. Hotel & Lodging Ass’n v. Lud- wig, 869 N.E.2d 846 (Ill. App. Ct. lst Dist. 2007). The Supreme Court of Illinois declined to hear the Illinois Hotel and Lodging Association’s appeal. Ill. Hotel & Lodging Ass’n v. Ludwig, 875 N.E.2d 1111 (Ill. 2007). While the Illinois Hotel and Lodging Associ- ation’s case was making its way through the Illinois state court system, Congress Plaza, which is not a member of that trade organization, filed its own challenge to the Attendant Amendment in federal court. Congress Plaza argued that the Attendant Amendment ‘s preempted by the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seqg., and section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). Congress Plaza also alleged that the Attendant Amendment violated its due process and equal protection rights, as well as provisions of the Illinois Constitution. Congress Plaza sought a permanent injunction prohibiting enforcement of the Attendant Amendment. Illinois and Unite Here filed separate motions to dismiss under Fed.R.Civ.P. 12(b)(6). Illinois also filed 9a a motion to dismiss under Fed.R.Civ.P. 12(b)(1), claim- ing Eleventh Amendment immunity from the state claims. The district court granted the defendants’ motions to dismiss Congress Plaza’s preemption and equal protection and due process claims. 520 S. M:ch- igan Ave. Assoc., Ltd. v. Shannon, 2007 WL 2728757 at *8-11 (N.D.Ill. 2007). The district court then declined jurisdiction over Congress Plaza’s state law claims. Id. at *11. Congress Plaza appeals. II. On appeal, Congress Plaza argues that the NLRA preempts the Attendant Amendment.* Whether the NLRA preempts the Attendant Amendment is a pure legal question and therefore we review the district court’s decision de novo. See Cannon v. Edgar, 33 F.3d 880, 883 (7th Cir. 1994). Moreover, our de novo review 4 Congress Plaza does not pursue its §301 LMRA pre- emption claim on appeal. Moreover, while Congress Plaza states in its Statement of the Case that it “also claims the amendment violates the special legislation provision of the Illinois Constitution and constitutes an arbitrary legislative classification,” Appellant Br. at 2, it does not present these claims in its Issues Presented For Review. Congress Plaza also does not make any argument in support of its state law claims. Accordingly, Congress Plaza has waived any argument based on state law. See Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1025 n.6 (7th Cir. 2003) (holding that when a party presents no argument in its brief with respect to a particular claim, any arguments with respect to that claim are waived). 10a is not limited by the state court’s decision in Ill. Hotel & Lodging Ass’n v. Ludwig, 869 N.E.2d 846, holding that the Attendant Amendment is not preempted by the NLRA. We “owe[ ] no deference to state-court inter- pretation of the United States Constitution.” TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1181 (10th Cir. 2007) (citing Ace Cycle World, Inc. v. Am. Honda Motor Co., 788 F.2d 1225, 1228 (7th Cir. 1986)).° Our review of preemption begins with the Constitution’s Supremacy Clause. See Cannon, 33 F.3d at 883. The Supremacy Clause provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges . When the question of federal preemption of state law is at issue, state and federal courts, perhaps not surprisingly, may reach starkly divergent views on the United States Constitution, as illustrated most clearly in Geier v. American Honda Motor Co., 529 U.S. 861 (2000). In Geier, the Supreme Court held that a state tort claim against Honda for failing to provide a driver’s side air bag was preempted by a federal regulation. Prior to the Supreme Court’s ruling, every federal circuit which considered the issue had held that the state law was preempted, while state courts uniformly held to the contrary — that federal law did not preempt state law. Geier, 529 U.S. at 866. lla in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const. art. VI, cl. 2. Thus, under Article VI of the Constitution, federal law is the “supreme Law of the Land,” and “it preempts state laws that ‘interfere with, or are contrary to, federal law.’” Boomer v. AT & T Corp., 309 F.3d 404, 417 (7th Cir. 2002) (quoting Hillsborough County v. Automated Medical Laborat- ories, Inc., 471 U.S. 707, 712, 105S.Ct. 2371, 85 L.Ed.2d 714 (1985)). In Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985), the Supreme Court summarized the task courts face when confronted with the issue of preemption, stating: In deciding whether a federal law pre-empts a state statute, our task is to ascertain Congress’ intent in enacting the federal statute at issue. Pre-emption may be either express or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Id. at 738 (internal quotations omitted). As the Supreme Court recently explained in Chamber of Commerce v. Brown, 1288S. Ct. 2408 (2008), “the NLRA itself contains no express preemption provision.” Jd. at 2412. Thus, the issue facing us is one of implied preemption. With implied preemption, a state 12a law should be sustained “unless it conflicts with federal law or would frustrate the federal scheme, or unless whe courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States.” Malone v. White Motor Corp., 435 U.S. 497 (1978). Further, in the context of the NLRA, a state law is preempted by implication if it conflicts with the underlying goals and policies of the NLRA or stands “as an obstacle to the accomplishment and execution of the full purposes and objectives” of Congress. Livadas v. Bradshaw, 512 U.S. 107, 120 (internal quotation om- itted). From these general preemption principles, the Supreme Court has developed two relevant NLRA preemption doctrines: Garmon preemption and Mach- inists preemption. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959); Machinists ov. Wisconsin Employment Relations Comm’n, 427 U.S. 132 (1976).° The first doctrine, Garmon preemption, seeks to prevent conflicts between state and local regulation and Congress’s integrated scheme of regulation embodied in Sections 7 and 8 of the NLRA. Garmon, A third preemption doctrine, based on § 301 of the LMRA, “pre-empts state law only insofar as resolution of the state-law claim requires the interpretation of a collective-bargaining agreement... .” Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 410 n. 8 (1988). Congress Plaza argued to the district court that § 301 preempts the Attendant Amendment, but as noted above, it does not pursue that argument on appeal 13a 359 U.S. at 244-45. Garmon preemption further seeks to protect the NLRB’s primary jurisdiction in cases involving sections 7 and 8 of the NLRA. Id. See also Livadas v. Bradshaw, 512 U.S. 107, 117, n. 11 (1994). The second relevant NLRA preemption doctrine is Machinists preemption. See Machinists v. Wis. Emp- loyment Relations Comm ’n, 427 U.S. 132 (1976). As the Supreme Court explained in Metropolitan Life, 471 U.S. 724, this “second pre-emption doctrine protects against state interference with policies implicated by the struct- ure of the Act itself, by pre-empting state law and state causes of action concerning conduct that Congress intended to be unregulated.” Jd. at 749. This preemp- tion doctrine governs “preemption questions that arose concerning activity that was neither arguably protected against employer interference by §§ 7 and 8(a)(1) of the NLRA, nor arguably prohibited as an unfair labor pract- ice by § 8(b) of that Act. 29 U.S.C. § 157, 158(a)(1) and (b).” Id. Thus, in Machinists, the Court held “that a State may not penalize a concerted refusal to work over- time that was neither prohibited nor protected under the NLRA, for ‘Congress intended that the conduct involved be unregulated because [it] left [the conduct]’ to be controlled by the free play of economic forces.” Metropolitan Life, 471 U.S. at 750 (quoting Machinists, 427 U.S. at 140, 96 S. Ct. 2548). While initially, Machinists preemption sought “to determine whether certain weapons of bargaining neither protected by § 7 nor forbidden by § 8(b) could be subject to state regulation, [i]t has been used more recently to deter- l4a mine the validity of state rules of general application that affect the right to bargain or to self-organization.” Metropolitan Life, 471 U.S. at 749 n. 27 (internal citations omitted). As the Supreme Court recently explained in Brown, “Machinists preemption is based on the premise that Congress struck a balance of protection, prohibition, and laissez-faire in respect to union organization, collective bargaining, and labor disputes.” Brown, 128 S. Ct. at 2412 (internal quota- tions omitted). We also elaborated on the concept of Machinists preemption in Cannon, explaining that this doctrine “prohibits state and municipal regulations of areas that Congress left to the free play of economic forces.” Cannon, 33 F.3d at 885 (internal quotations and citations omitted). Congress Plaza argues that the Attendant Am- endment is preempted by both Machinists preemption and Garmon preemption. At oral argument, though, in response to our query, Congress Plaza acknowledged that it believes Machinists preemption the stronger of the two arguments. We agree. See Metropolitan Life, 471 U.S. at 751 (considering whether a state law estab- lishing minimal mental health benefits in insurance plans was preempted by the NLRA and stating that “alll parties correctly understand this case to involve Machinists pre-emption”). Therefore, we begin with Congress Plaza’s argument that Machinists preempts the Attendant Amendment. 15a Congress Plaza argues Machinists preempts the Attendant Amendment because the Attendant Amend- ment “intrudes on the parties’ collective bargaining process” and alters the “free play of economic forces.” In response, Illinois and Unite Here (herein-after collectively “appellees”) argue that the Attendant Amendment is a minimum labor standard and as such is not preempted by the NLRA, citing Metropolitan Life, 471 U.S. 724 and Fort Halifax, 482 U.S. 1. In Metropolitan Life, 471 U.S. 724, two insurance companies (“appellants”), which issued group-health insurance policies in Massachusetts, argued that a Massachusetts statute requiring “any general health- insurance policy that provides hospital and surgical coverage, or any benefit plan that has such coverage, to provide as well a certain minimum of mental-health protection,” was preempted by ERISA and the NLRA. Id. at 730. The appellants in Metropolitan Life argued that “[b]lecause welfare benefits are a rnandatory sub- ject of bargaining under the labor law, .. . the NLRA pre-empts any state attempt to impose minimum- benefit terms on the parties.” Jd. at 751-52. The Supreme Court rejected this argument, con- cluding that “[t]he evil Congress was addressing [with the NLRA]... was entirely unrelated to local or federal regulation establishing minimum terms of employ- ment.” Jd. at 754. Accordingly, the Court held that “[n]o incompatibility exists, therefore, between federal rules designed to restore the equality of bargaining power, 16a and state or federal legislation that imposes minimal substantive requirements on contract terms negotiated between parties to labor agreements, at least so long as the purpose of the state legislation is not incompatible with these general goals of the NLRA.” Id. at 754-55. The Court further expounded on the meaning of minimum state labor standards, stating they “affect union and nonunion employees equally, and neither encourage nor discourage the collective-bargaining processes that are the subject of the NLRA. Nor do they have any but the most indirect effect on the right of self- organization established in the Act.” Jd. at 755. “Most significantly,” continued the Court, there was “no suggestion in the legislative history of the [NLRA] that Congress intended to disturb the myriad state laws then in existence that set minimum labor standards, but were unrelated in any way to the processes of bar- gaining or self-organization.” Jd. at 756. Rather, the Court “believe[d] that Congress developed the frame- work for self-organization and collective bargaining of the NLRA within the larger body of state law promoting public health and safety.” Jd. The Supreme Court add- ed: Federal labor law in this sense is interstitial, supplementing state law where compatible, and supplanting it only when it prevents the accomp- lishment of the purpose of the federal Act. Thus the Court has recognized that it cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelation- 17a ship between employees, employers, and unions; obviously, much of this is left to the States. When a state law establishes a minimal employ- ment standard not inconsistent with the general legislative goals of the NLRA, it conflicts with none of the purposes of the Act. Id. at 756-57 (internal quotation omitted). The Supreme Court then applied the afore- mentioned principles to the case at hand and held: Massachusetts’ mandated-benefit law is an insurance regulation designed to implement the Commonwealth’s policy on mental-health care, and as such is a valid and unexceptional exercise of the Commonwealth’s police power. It was designed in part to ensure that the less wealthy residents of the Commonwealth would be provided adequate mental-health treatment should they require it. Though [the insurance statute], like many laws affecting terms of employment, potentially limits an employee’s right to choose one thing by requiring that he be provided with something else, it does not limit the rights of self-organization or collective bargaining protected by the NLRA, and is not pre-empted by the Act. Id. at 758. Accordingly, the Supreme Court held that Massachusetts’ mandated-benefit law is not preempted by the NLRA. 7d. 18a Just two years later, in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987), the Supreme Court again addressed the issue of the relationship between “minimum labor standards” and preemption. In Fort Halifax, an employer challenged a Maine statute requiring employers to provide severance pay to certain employees. Jd. at 5. Employees qualified if their em- ployers laid off 100 or more employees, or relocated more than 100 miles away, so long as the employee had worked at the plant at least three years. Id. Severance pay was not required if the employee accepted employ- ment at the new plant location or if a contract with the employee addressed the issue of severance pay. Id. Fort Halifax argued the state law was preempted because, while it did not directly regulate economic activity, it indirectly undercut the collective bargaining process. Id. at 20. The Supreme Court first noted that it had rejected in Metropolitan Life the argument “that a State’s establishment of minimum substantive labor standards undercuts collective bargaining... .” Id. at 20. The Court then explained its holding in Metropol- itan Life noting, among other things “that the NLRA is concerned with ensuring an equitable bargaining process, not with the substantive terms that may emerge from such bargaining.” /d. After the Court in Fort Halifax further explained Metropolitan Life, the Court stated that [ijt is true that the Maine statute gives employ- ees something for which they otherwise might 19a have to barg n. That is true, however, with regard to any state law that substantively regulates employment conditions. Both emp- loyers and employees come to the bargaining table with rights under state law that form a “backdrop” for their negotiations. Id. at 21. The Court rejected the claim of preemption, stating “the mere fact that a state statute pertains to matters over which the parties are free to bargain cannot support a claim of pre-emption, for there is nothing in the NLRA... which expressly forecloses all state regulatory powers with respect to those issues . . . that may be the subject of collective bargaining.” Jd. at 21-22 (internal quotation omitted). The Supreme Court in Fort Halifax concluded that the Maine statute “is not pre-empted by the NLRA, since its establishment of a minimum labor standard does not impermissibly intrude upon the collective- bargaining process.” Id. at 23. The Supreme Court’s decisions in Metropolitan Life and Fort Halifax stand for several propositions. First, the NLRA is concerned primarily with estab- lishing an equitable process for bargaining, and not the substantive terms of bargaining. Fort Halifax, 482 U.S. at 20; Metropolitan Life, 471 U.S. at 753-54. Second, a state law is not preempted by the NLRA merely because it regulates a mandatory subject of bargaining. Fort Halifax, 482 U.S. at 21; Metropolitan Life, 471 U.S. at 757. And third, the NLRA does not preempt a state law 20a which “establishes a minimum labor standard that does not intrude upon the collective-bargaining process.” Fort Halifax, 482 U.S. at 7; see also Metropolitan Life, 471 U.S. at 754-55 (“No incompatibility exists, therefore, because federal rules designed to restore the equality of bargaining power, and state or federal legislation that imposes minimal substantive require- ments on contract terms negotiated between parties to labor agreements, at least so long as the purpose of the state legislation is not incompatible with these general goals of the NLRA.”). Against this backdrop, then, we return to the parties’ arguments. As noted above, Congress Plaza claims that the Attendant Amendment is preempted by Machinists because it “intrudes on the parties’ collect- ive bargaining process” and alters the “free play of economic forces.” In response, based on Metropolitan Life and Fort Halifax, appellees claim that the Atten- dant Amendment is a minimum labor standard and is thus not preempted. Congress Plaza rejects this char- acterization of the Attendant Amendment (as a minimum labor standard), relying on this court’s decision in Cannon. In Cannon, a gravediggers’ union, a union mem- ber, and union leaders sued the State of Illinois, claim- ing that the Burial Rights Act was preempted by the NLRA and therefore violated the Supremacy Clause of the Constitution. Cannon, 33 F.3d at 881. The Burial Rights Act required cemeteries’ management and labor 2la unions to agree to establish a pool of workers who would provide religiously required interments during a labor dispute. Jd. at 882. Additionally, the Burial Rights Act provided that “(t]he failure of a cemetery authority or a labor union to negotiate in good faith to establish a pool of workers as provided [in the Act] constitutes a willful violation of this Section,” in which case the court shall “grant appropriate relief, including . . . an award of attorney’s fees and the imposition of a fine not to exceed $1,000 for each interment which is found to have been delayed in violation of this Section.” Jd. at 882 n.1 (quoting 820 ILCS 135/2.1). After setting forth the gov- erning law, this court held that the Burial Rights Act was preempted by both Garmon preemption and Machinists preemption. Id. at 885. We explained that “the Burial Rights Act is a direct intrusion by the state into the collective bargaining process. The Burial Rights Act purports to regulate a particular term of the bargaining process — that of a pool of workers — and, further requires the parties to actually agree on a particular pool of workers or face sanctions at the hands of the Illinois courts.” Id. at 884. The court in Cannon held “the NLRA does not tolerate this kind of invasion by astate into the collective bargaining process. ...” Id. Cannon further held that the Burial Rights Act was preempted by Machinists, because it “intrude[d] on the collective bargaining process in a variety of ways; it orders the parties to negotiate as to a _ specific substantive condition — that of a pool of workers to perform interments during labor disputes. And, more 22a invasive, the Burial Rights Act orders the parties to agree on a pool of workers, or face sanctions for a failure to do so.” Id. at 885. Appellees argue in response that Cannon is distinguishable because the statute at issue in Cannon, the Burial Rights Act, required the parties to bargain collectively over the issue of a pool of workers, whereas the Attendant Amendment does not mandate bargaining, but instead establishes a minimum labor standard which does not interfere with the collective bargaining process. However, this is a distinction without a difference. As the Supreme Court recently explained, “{iJn NLRA pre-emption cases, judicial con- cern has necessarily focused on the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted.” Brown, 1285S. Ct. at 2414 (internal quotations omitted). What a state cannot do directiy, it also cannot do indirectly. Id. at 2415. The question then is whether the Attendant Am- endment establishes a minimum labor standard that does not interfere with collective bargaining. If so, then the regulation (direct or indirect) is permissible. To address whether the Attendant Amendment establishes a minimum labor standard, we turn again to the Supreme Court. Unfortunately, though, the Supreme Court’s guidance is sparse. In Metropolitan Life, the Court merely noted that minimum labor standards “affect union and nonunion employees equally, and 23a neither encourage nor discourage the collect- ive-bargaining processes that are the subject of the NLRA.” 471 U.S. at 755. The Court added that minimum labor standards have only “the most indirect effect on the right of self-organization established in the - Act... [and] are not laws designed to encourage or discourage employees in the promotion of their interests collectively ....” Id. (quoting Barrentine, 450 U.S. at 739 (emphasis in the original)). While the Attendant Amendment facially affects union and nonunion employees equally, for several reasons we conclude that it does not constitute a genuine minimum labor standard. First, unlike the statutes at issue in Metropolitan Life and Fort Halifax, the Attendant Amendment is not a statute of general application. In Metropolitan Life, the state law at issue did not regulate employment, but rather regulated insurance policies and it applied to all “general health-insurance polic[ies]” and “any benefit plans.” Metropolitan Life, 471 U.S. at 730. Significantly, in Metropolitan Life, the Court characterized the law as one of general application, stating: “Congress appar- ently did not consider the question of whether state laws of general application affecting terms of collective-bargaining agreements subject to mandatory bargaining were to be preempted.” Jd. at 753 (emphasis added). See also Livadas, 512 U.S. at 123 n.17 (stating that “Congress is understood to have legislated against a backdrop of generally applicable [state] labor stan- dards”). In Fort Halifax, the state’s severance statute 24a applied to all employers who laid off 100 or more employees (or relocated 100 or more miles away). Fort Halifax, 482 U.S. at 5. While not universal in app- lication (since it only applied to larger layoffs or distant relocations), the statute still had a very broad app- lication. See, e.g., Carpenters Local Union No. 26 v. U.S. Fidelity & Guar. Co., 215 F.3d 136, 145 (1st Cir. 2000) (stating, in the context of ERISA preemption, that a law of general application “applies to a sufficiently broad, sufficiently generalized universe of situations”). Other circuits likewise characterize “minimum labor standards” as laws of general application. See Chamber of Commerce v. Bragdon, 64 F.3d 497, 503 (9th Cir. 1995) (“This is also not the type of regulation of general application that assures that certain coverage provisions be included in all health insurance contracts, such as in Metropolitan Life; nor is it the type of regulation seeking to alleviate a particular hardship such as plant closings that affect the employees and the community.”); Barnes v. Stone Container Corp., 942 F.2d 689, 692 (9th Cir. 1991) (“The Supreme Court has upheld state statutes which, although they affect employees covered by collective bargaining agreements, are statutes of general applicability and do not primarily ‘regulate relations between employees, their union, and their employer.’ ”) (emphasis in original) (quoting New York Tel. Co. v. New York State Dep't. of Labor, 440 U.S. 519, 533 (1979)); Hull v. Dutton, 935 F.2d 1194, 1198 (11th Cir. 1991) (holding that Alabama’s longevity pay statute is not a “minimum labor standard” in part 25a because the “statute applies only to its own employees and not to its citizens generally”). The Attendant Amendment, however, does not have the general applicability seen in these cases. Rather, it applies to only one occupation (room attendants), in one industry (the hotel industry), in one county (Cook county).’ These limitations distinguish the Attendant Amend- ment materially from the statutes of general app- lication considered in Metropolitan Life and Fort Halifax. The appellees argue that minimum labor standards that apply only to particular occupations, industries or categories of employers have survived preemption challenge, citing a series of cases. See Appellee Br. at 20-21 citing among others, Fort Halifax, 482 U.S. at 5 (plant closing law that applied to layoffs with 100 or more employees not preempted); Dillingham v. Sonoma County, 190 F.3d 1034, 1041 (9th Cir. 1999) (minimum standards that applied only to apprentices in skilled construction trades not pre- empted); Viceroy Gold Corp. v. Aubry, 75 F.3d 482, 485, 490 (9th Cir. 1996) (overtime regulation applying only to miners not preempted); Nat. Broadcasting Co. v. Bradshaw, 70 F.3d 69, 71-72 (9th Cir. 1995) (California regulation applying only to broadcast employees not The statute by its terms applies to any county with a population of three million or more, but as noted above, out of 102 counties, only Cook county has the requisite number of residents. 26a preempted); and Wash. Serv. Contractors Coalition v. District of Columbia, 54 F.3d 811, 819 (D.C.Cir. 1995).* The appellees further rely on the Ninth Circuit’s deci- sion in Associated Builders & Contractors of So. Cal., Inc. v. Nunn, 356 F.3d 979, 990 (9th Cir. 2004), wherein the court stated that “state substantive labor standards, including minimum wages, are not invalid simply because they apply to particular trades, professions, or job classifications rather than the entire labor market.” Unlike these cases, though, the Attendant Am- endment is not just limited by trade — it is also limited by location; the Attendant Amendment is astate statute that applies only in one county in Illinois — Cook county. That fact distinguishes this case from the series of cases cited by Appellees, including Nunn; the Attend- ant Amendment is not just limited to a particular trade, profession, or job classification; it is also a state statute limited to only one of Illinois’ 102 counties. Moreover, we find the Ninth Circuit’s decision in Bragdon better reasoned. In Bragdon, 64 F.3d 497, the Chamber of Commerce sued a California county and Appellees noted parenthetically that Washington Serv. Contractors, 54 F.3d 811, held a “local ordinance applying only to janitorial contractors not preempted.” Appellee Br. at 21. Contrary to Appellees’ assertion, however, the statute at issue in Washington Serv. Contractors, 54 F.3d 811 was not limited to janitorial contractors, but applied to persons who performed “food, janitorial, maintenance, or non-professional health care services.” Id. at 814. 27a county officials, challenging an ordinance that required employers to pay “prevailing wages” to employees on private construction projects costing over $500,000. Jd. at 498. The Ordinance stated that its purpose was “to promote safe construction, minimize the risk of accid- ents on industrial projects, prevent erosion of the wage scale, and alleviate the burden on the County’s health and welfare services and law enforcement, caused by low-paid workers.” Jd. The “prevailing wages” were de- fined by the California Department of Industrial Relations, which determined the “prevailing wage” “by reference to established collective bargaining agree- ments within the locality.” Jd. at 498-99. More specific- ally, “{t]he Director uses formulas that average the wages and benefits for each craft pursuant to collective- bargaining agreements applicable in each labor mav- ket.” Id. at 502. Under the Ordinance, construction companies were required to agree to pay the state- determined prevailing wage before the County would issue a building permit. Jd. at 499. The Chamber of Commerce argued that the Ordinance was pre-empted by the NLRA. Jd. The county responded that the pre- vailing wage ordinance was a “minimum labor stan- dard” and as such was not preempted. After explaining general preemption principles, the Machinists doctrine, and summarizing the Supreme Court’s decisions in Metropolitan Life and Fort Halifax, the Ninth Circuit held that the Ordinance establishing the prevailing wage for construction workers was pre-empted by Machinists. Id. at 504. In so holding, the Ninth Circuit 28a concluded that the ordinance was “also very different from a minimum wage law, applicable to all employees, guaranteeing a minimum hourly rate.” Bragdon, 64 F.3d at 502 (emphasis added). The Bragdon court also stressed that the Ordinance at issue was “much more invasive .. . than the isolated statutory provisions of general application approved in Metropolitan Life and Fort Halifax.” Id. The court in Bragdon reasoned: This is also not the type of regulation of general application that assures that certain coverage provisions be included in all health insurance contracts, such as in Metropolitan Life; nor is it the type of regulation seeking to alleviate a particular hardship such as plant closings that affect the employees and the community. This Ordinance, by contrast, sets detailed minimum wage and benefit packages, distinct for each craft involved in certain limited construction projects. This minimum varies from time-to-time as new averages are calculated. The district court noted that unlike the law upheld in Metropolitan Life, the Ordinance is more properly characterized as an example of an interest group deal in public- interest clothing. Id. at 503 (internal quotation omitted).” : While the panel in Nunn expressed disagreement with some aspects of its Ninth Circuit colleagues’ earlier decision in Bragdon, see Nunn, 356 F.3d at 990, there were two (continued...) 29a Like the Bragdon court, we find the lack of general application in the Attendant Amendment significant. In exempting “minimum labor standards” from the preemptive force of the NLRA, Metropolitan Life and Fort Halifax both involved laws of general application and the Supreme Court has characterized “minimum labor standards” as laws of general app- lication. Metropolitan Life, 471 U.S. at 753; Fort Hali- fax,482 U.S. at 5. The Attendant Amendment’s narrow scope distinguishes it from minimum labor standards which are not subject to preemption, and places the Attendant Amendment in the “zone protected and reserved for market freedom.” Brown, 1285S. Ct. at 2412 (quoting Building & Constr. Trades Council v. Assoc. Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 227 (1993)). : (...continued) distinguishing features in Bragdon that separated it from Nunn. As Nunn recognized, “Congress authorized states to establish apprenticeship standards and to regulate the conditions governing the implementation of apprenticeship programs, whether the apprentices were working on public or private projects,” and this “differentiates California’s apprenticeship regulations from the Contra Costa County ordinance at issue in Bragdon.” Nunn, 356 F.3d at 990-91. The court in Nunn further distinguished Bragdon, reasoning “{sjecond and equally important, unlike in the case of the Contra Costa County ordinance at issue in Bragdon, here contractors may completely avoid the applicability of the California apprenticeship regulations” by not hiring appren- tices. Id. at 991. 30a The Attendant Amendment’s narrow scope of application also serves as a disincentive to collective bargaining. As the Supreme Court explained in Metropolitan Life, a minimum labor standard should “neither encourage nor discourage the collective- bargaining process that are the subject of the NLRA.” 471 U.S. at 755. Yet by passing a statute with such a narrow focus (one occupation, in one industry, in one county), there seems to be a disincentive to collective bargaining and instead encouragement for employers or unions” to focus on lobbying at the state capital instead of negotiating at the bargaining table.” © Unite Here lobbied for the Attendant Amendment. The appellees argue its lobbying is irrelevant, because “[f]ederal pre- emption doctrine evaluates what legislation does, not why legis- lators voted for it or what political coalitions led to its enact- ment.” Appellee Br. at 27 (quoting Northern Ill. Chapter of Assoc. Builders & Contractors v. Lavin, 431 F.3d 1004, 1007 (7th Cir. 2005)). We agree that Unite Here’s lobbying is irrel- evant, but what is relevant is that the law discourages collective bargaining. ‘1 The legislative debate shows that several state legislators recognized this incentive. See, e.g., ILS. Tran. 2005 Reg. Sess. No. 44, Senator Roskam (“These folks, if they want to win fair and square, by golly go negotiate. Put it on the table and negotiate. Look one another in the eye and bargain. Say we’re not going to dothis job unless you give us these fifteen minutes ortwenty minutes or have our smoke breaks or take a diet Coke break or whatever you want to do, but we ought not do this.”); ILS. Tran. 2005 Reg. Sess. No. 45, Senator Pankau (“The main (continued...) 3la The Ninth Circuit explained this phenomenon in Bragdon, 64 F.3d 497 (9th Cir. 1995). As noted above, in Bragdon, the Ninth Circuit struck an Ordinance estab-lishing a prevailing wage for certain private construc-tion projects. Jd. at 498. In striking the Ordinance, the Ninth Circuit noted that the same or similar justific-ations for the exercise of police power in one business or industry “could be advanced for most any business or industry.” Jd. at 504. The Ninth Circuit recognized the impact, stating: A precedent allowing this interference with the free play of economic forces could be easily app- lied to other businesses or industries in estab- lishing particular minimum wage and benefit packages. This could redirect efforts of employees not to bargain with employers, but instead, to seek to set minimum wage and benefit packages with political bodies. This could invoke defensive action by employers seeking to obtain caps on wages in various businesses or industries. This could be justified as an exercise of police power on community welfare grounds of lowering con- struction costs to attract business to the area or 't (...continued) item in this particular bill is this is a bargainable issue. It has been bargained before. It has been presented many times before this particular labor union. So, why are — if they can’t get it in their own negotiations, why are they coming down here to us to put it into law?”). 32a lowering costs to consumers so as to make prod- ucts or services more available to the gereral public. This substitutes the free-play of poiitical forces for the free play of economic forces that was intended by the NLRA. Id. at 504. Additionally, while on its face this law applies to union and non-union employees equally, the statute’s narrow application equates more to a benefit for a bar- gaining unit than an individual protection. While not all room attendants in Cook county are unionized, by regulating only one county the state makes it possible to target union-heavy counties (or union-light counties), and thus reward (or punish) union activity. Illinois’ approach further allows non-union employees to ben- efit from the bargaining of the union which took place, not at the bargaining table, but at the legislature. In Bragdon, the Ninth Circuit held that Machinists preempted an Ordinance which “targets particular workers in a particular industry and is developed and revised from the bargaining of others, affects the bargaining process in a way that is incompatible with the general goals of the NLRA.” Bragdon, 64 F.3d at 504. The One Day Rest in Seven Act further shows that the Attendant Amendment is not a true minimum labor standard. As noted above, prior to passage of the Attendant Amendment, the One Day Rest in Seven Act already established a minimum labor standard for 33a breaks, requiring employers to provide one unpaid twenty-minute meal break, although this mandate did “not apply to employees for whom meal periods are established through the collective bargaining process.” 820 ILCS 140/3. That minimum labor standard still applies in Illinois, but the Attendant Amendment sets a higher standard. [Illinois argues that there is no reason that it cannot increase the minimum, but that is not what Illinois did. Rather, Illinois retained its minimum labor standard and crafted a higher standard for a specific occupation, in a specific industry, in a spec- ific county. In explaining minimum labor standards, the Supreme Court spoke of the laws as establishing a “backdrop” for their negotiations. Fort Halifax, 482 U.S. at 21. The One Day Rest in Seven Act established such a state-wide backdrop, while the Attendant Am- endment overrode the local bargaining process by imposing confining requirements on one occupation, in one industry, in one county. Moreover, the One Day Rest in Seven Act exempts from coverage employees covered by a collective bargaining agreement that provides for break rooms and meal breaks. The Attendant Amendment does not contain a similar exemption. As the Supreme Court explained in Fort Halifax, “(t]he fact that the parties are free to devise their own severance pay arrangements... strengthens the case that the statute works no intrusion on collective bargaining [because the State] has sought to balance ‘he desirability of a particular substantive labor standard against the nght 34a of self-determination regarding the terms and con- ditions of employment.” Fort Halifax, 482 U.S. at 22. While a “statute that permits no collective bar-gaining on asubject [may] escape NLRA preern.:ption,” id., when the parties are not free to devise their own arrangement preemption applies because the statute intrudes on the collective bargaining process. That is especially true where a similar statute of general applicability allows for such bargaining, but the narrowly targeted law does not. Furthermore, the Attendant Amendment does not qualify as a “minimum” labor standard. “Min- imum,” as used by the Supreme Court, implies a low threshold. In fact, in Metropolitan Life, the Supreme Court spoke ofa state or federal legislation that imposes “minimal substantive requirements on contract terms negotiated between parties to labor agreements.” 471 U.S. at 754. The Supreme Court also spoke of minimum labor standards as forming the backdrop for negotiations, Fort Halifax, 482 U.S. at 21, again in- dicating a low-threshold law which serves as a floor. Our sister circuits have likewise read “minimum labor standard” as a minimal substantive impact on contracts. See Bragdon, 64 F.3d at 500 (stating that “[w]hen a state law establishes a minimal employment standard not inconsistent with the general legislative goals of the NLRA, it conflicts with none of the purposes of the Act”) (emphasis in origina!); Hull, 935 F.2d at 1198 (noting that “[a]lthough the Supreme Court did not define what it considered to be a ‘minimum labor 35a standard,’ ” such statutes are “valid and unexceptional exercise[s] of the [state’s] police power,” and a state “longevity pay statute is not such a beast”) (internal quotation omitted). The Attendant Amendment is much more than a mere backdrop to negotiations because it establishes terms of employment that would be very difficult for any union to bargain for. Specifically, in addition to the requirement for two paid fifteen-minute breaks and an unpaid thirty-minute lunch break, the Attendant Amendment creates a presumption of retal- iation and shifts the burden of proof to the employer.’* 2 Specifically, 820 ILCS 140/3.1(g) provides: “It is unlawful for any employer or an employer’s agent or representative to take any action against any person in retaliation for the exercise of rights under this Section. In any civil proceeding brought under this subsection (f), if the plaintiff establishes that he or she was employed by the defendant, exercised rights under this Section, and was thereafter terminated, demoted, or otherwise penalized by the defendant, then a rebuttable presumption shall arise that the defendant’s action was taken in retaliation for the exercise of rights established by this Section. To rebut the presumption, the defendant must prove that the sole reason for the termination, demotion, or penalty was a legitimate business reason.” Thus * .nstance, if a hotel fired a room attendant because the :oom attendant failed to clean the required daily quota of rooms, but the room attendant alleged that the real reason for his or her termination was that he or she had taken the statutorily mandated breaks, 820 ILCS 140/3.1(g) creates a presumption of retaliation. (continued...) 36a See 820 ILCS 140/3.1. We are aware of no law or contract that establishes such a shifting of the burden of proof, nor which requires proof from the employer that the “sole reason,” id., for any disciplinary conduct was a legitimate business reason. Moreover, this presumption and the shifting of the burden of proof applies indefinitely; it does not matter how long ago it was that an employee exercised rights under the Attendant Amendment or alleged the employer was not complying with the terms of the Attendant Amendment. Once either occurs the defendant-employer will from then on have the burden of proof.’® In addition to shifting the burden of proof to the employer, the Attendant Amendment provides that, along with back pay and reinstatement, an employee terminated in violation of the Attendant Amendment 2 (...continued) The burden of proof would then shift to the hotel to prove that the sole reason for the termination was “a legitimate business reason.” 'S At oral argument, Unite Here’s attorney stated that the presumption only applies if the employee is disciplined within ninety days of asserting that his employer is not complying with the terms of the Attendant Amendment. However, following oral argument, United Here’s attorney submitted a letter to correct this [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0708%3A0. Public record. Not legal advice.