This week’s notable decision is from the land of ERISA preemption:  Allied Constr. Indus. v. City of Cincinnati, No. 16-4248, __F.3d__, 2018 WL 283775 (6th Cir. Jan. 4, 2018).  The City of Cincinnati and Laborers International Union of North America, Local 265 appealed the district court’s decision that three City ordinance provisions concerning bidder specifications for certain City projects were preempted by ERISA. The Sixth Circuit reversed the district court and held that the City was acting as a market participant in enacting the Ordinance, and therefore these provisions are not preempted by ERISA.  

By way of background, in Bldg. & Constr. Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993) (“Boston Harbor”), the Supreme Court determined that a state agency’s bidding specifications for selecting contractors for the state-funded clean-up of the Boston Harbor was not preempted by the NLRA because the state acted as a proprietor rather than a regulator in imposing the requirement.  In this case, the City argued that the market-participant doctrine set forth in Boston Harbor should be applied to ERISA.  
Continue Reading Sixth Circuit Adopts Boston Harbor Market-Participation Doctrine to ERISA Preemption