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State 'Fair Share' law finally put to rest


We applaud Maryland Attorney General Douglas Gansler's decision last week not to seek U.S. Supreme Court review of rulings that struck down the state's so-called "Wal-Mart" or "Fair Share" law.

As Mr. Gansler put it, the state did not appeal because it did not think it could win.

The reason for his pessimism: Lower courts found the law was pre-empted by the Employee Retirement Income Security Act and little evidence to suggested the Supreme Court would have ruled differently.

To us, this was an open and shut case from the beginning. The Maryland law required any employer with at least 10,000 employees in the state to spend at least 8% of payroll on health care benefits or pay the difference into a state fund.

The numbers affected only Wal-Mart Stores Inc., one of the nation's biggest nonunion employers and one that has drawn the ire of organized labor--no small force in Maryland. And while organized labor has every right to do battle with Wal-Mart, and vice versa, labor's legislative allies would have been wise to consult ERISA attorneys before backing a measure that was so patently pre-empted by ERISA.

As any ERISA attorney could have told Maryland legislators, a key purpose of ERISA pre-emption was to encourage national employers to offer uniform benefit plans. If one state were allowed to require employers to spend a certain amount on health insurance, others might follow with different requirements and make it very expensive, if not impossible, for a multistate employer to offer uniform health care benefits.

We hope Maryland legislators develop proposals that will broadly and legally expand coverage. That surely is far more in the public interest than corporate bashing games.