Receive our blogs in your inbox

HR tips from industry experts.

Preemption Laws: Federal vs. State Control

Tonya Fletcher SPHR, SHRM-SCP
by Tonya Fletcher SPHR, SHRM-SCP on May 15, 2024

Navigating the complexities of American law requires a solid understanding of how different laws interact and which jurisdictions prevail. At the heart of this interaction are preemption laws, which delineate the boundaries between federal authority and state sovereignty. Here, we delve deeper into the nature of preemption, its types, and its implications across various states.

What is Preemption?

Preemption is when a higher level of government, like the federal government, has laws that override or cancel out the laws of a lower level of government, such as state or local. This means that when there’s a disagreement between federal and state law, federal law generally overrides/pre-empts state law, but there are exceptions as explained later.

This idea comes from a part of the U.S. Constitution called the Supremacy Clause, which says that federal law is the "supreme law of the land." This clause helps keep laws consistent across the whole country. For example, if the federal government has a law about how to protect the environment, states can't have conflicting rules that go against it.

U.S. preemption laws ensure that important rules are the same everywhere in the country, but it also allows states to make their own rules in areas where the federal government hasn't made any specific laws. This way, states can manage local issues in ways that best suit their people, as long as these ways don't conflict with any federal laws.

What are the Two Primary Types of Preemption?

Express Preemption

Express preemption occurs when federal legislation includes specific language indicating that it overrides conflicting state or local laws. This explicit statement is often found in the statutory text, making it clear that the federal government intends to exclusively regulate a particular area.

For example, the Clean Air Act contains express preemption clauses that restrict states from issuing emissions standards or testing requirements that are different from federal standards for new motor vehicles. This ensures a uniform national policy towards air quality and vehicle emissions standards.

Implied Preemption

Implied preemption exists in two forms: field preemption and conflict preemption. Field preemption arises when federal regulation is so pervasive and comprehensive that it 'occupies the field,' leaving no room for state regulation. For instance, the Federal Communications Commission (FCC) regulates interstate communications to such a degree that individual states cannot enforce conflicting rules without running into preemption issues.

Conflict preemption, on the other hand, occurs when it is impossible to comply with both state and federal laws, or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. A classic case is when state laws regarding prescription medication labeling are preempted by more stringent FDA regulations designed to create uniform standards across the country.

Degrees of Preemption

Preemption can vary in how it is applied, which leads to different degrees of preemption. These degrees help to determine how much flexibility state and local governments have in creating and enforcing their own laws when a higher level of government has already legislated in a particular area. Here are the two primary degrees of preemption:

1. Floor Preemption:

This type of preemption sets a minimum standard or "floor" that states must meet, but they are free to enact stronger or more stringent laws if they choose. Floor preemption ensures that there is a basic uniform standard across all states, but allows for states to go beyond this minimum if they wish to provide greater protections or stricter regulations.

Example: A good example is the federal minimum wage law. It sets the lowest hourly wage that employers can legally pay their workers. States and localities, however, can choose to implement a higher minimum wage if they decide that the federal minimum is not sufficient for their economic conditions.

2. Ceiling Preemption:

Ceiling preemption sets a maximum standard or "ceiling," which states cannot exceed. This type of preemption is used when uniformity is crucial across all states, typically for reasons such as ensuring a level playing field in business, simplifying regulatory compliance, or managing resources that cross state boundaries.

Example: The Federal Aviation Administration (FAA) regulations serve as a ceiling preemption example. These regulations set standards for aviation safety, noise levels, and other factors related to air travel and aircraft operation, preventing states from enacting rules that are in conflict with the standards.

Both types of preemption have their places and are chosen based on the specific goals of the legislation, whether it's to ensure a basic right or protection everywhere (floor) or to maintain uniform standards nationwide (ceiling).

State Preemption Laws

By this point, you may be looking for a preemption law example. FrankCrum is here to help outline some of the most recent laws that federal and state officials have discussed.

In the United States, both state and federal governments make laws, but sometimes these laws can clash. When that happens, we need to know which law comes first. This decision is guided by the idea of preemption, based on the Supremacy Clause of the U.S. Constitution. This clause says that federal law is the "supreme law of the land," which means if a state law disagrees with a federal law, the federal law wins. This helps keep rules the same across the whole country in important areas like safety and civil rights.

But states also have the power to control laws within their own borders. They can set laws that all cities and counties within the state must follow, stopping these smaller places from making their own different rules. This makes sure that some rules are the same everywhere in the state, like how much the minimum wage is. States do this to keep things simple and make sure that everyone has a fair setup, no matter where they live in the state.

State preemption laws can profoundly impact the regulatory landscape, particularly concerning employment and privacy regulations. Here are some examples of preemption laws by state:


Florida's HB 433, which takes effect on July 1st, 2024, illustrates state-level preemption in employment law. Preemption law in Florida prevents local governments from enacting their own regulations regarding workplace heat protection, wage settings through contracting, and predictive scheduling. By centralizing authority, Florida preemption law aims to provide uniformity and predictability for businesses operating across multiple jurisdictions within the state.


In Alabama, state preemption prevents cities and counties from setting their own minimum wage rates or mandating specific employment benefits. This law was particularly notable in its blocking of Birmingham's attempt to raise the minimum wage within the city, reflecting the state's preference for uniform economic policies.


Known for its progressive stances, California’s preemption laws in data privacy set a high bar with the California Consumer Privacy Act (CCPA), which offers broader protection than most federal standards and serves as a benchmark for other states considering similar legislation.


Missouri’s preemption laws cover a wide range of employment practices, including the setting of minimum wages and the establishment of leave policies. These laws standardize employment conditions across the state, minimizing administrative burdens for companies with multiple locations within Missouri.

North Dakota

North Dakota's approach to minimum wage and paid family leave illustrates how state preemption can create a consistent regulatory environment for businesses and employees alike, ensuring that all workers have the same baseline protections regardless of their specific location within the state.

Balancing state and federal laws is like a tug-of-war. It's all about finding the right balance between having the same rules across the whole country and letting local areas make decisions that are best for them. Understanding how these laws work together helps everyone, from lawmakers to everyday people.

The growing scope of employment-related obligations can make it difficult to keep up with changes. Clients of FrankCrum have access to experts to help with determining the appropriate employment law in order to stay in compliance. Click here to find out how FrankCrum can help you.

Tonya Fletcher SPHR, SHRM-SCP
Tonya Fletcher SPHR, SHRM-SCP

Tonya is the Labor Compliance Manager at FrankCrum. In this role, she leads the FrankAdvice team of HR consultants and manages the delivery and content of best practice HR information to client owners and managers. When she’s not at work, Tonya enjoys international travel.

Related Blog Posts