As we previously reported, several states, beginning with New York, have introduced or passed legislation aimed at assuming certain responsibilities of the National Labor Relations Board (NLRB or Board) in the event it lacks a quorum. For instance, in New York, the NLRB Trigger Bill (Assembly Bill A8590/Senate Bill S8034A) would allow the New York Public Employment Relations Board to adjudicate representation and unfair labor practice cases for both public- and private-sector employees if the Board lacks a quorum. Although President Donald Trump has nominated two individuals to the Board whose confirmations would restore a quorum, the ongoing government shutdown may delay the process.
California Bill
Not surprisingly, California has followed suit. Gov. Gavin Newsom signed similar legislation (AB288) that would allow public and private workers to take their representation petitions to California’s Public Employment Relations Board (CPERB) if the NLRB is incapacitated. AB288 also would allow the CPERB to issue bargaining orders, forcing employers to bargain with unions. Notably, California’s bill goes even further, allowing the CPERB to impose civil penalties, a remedy that is not available under the National Labor Relations Act (NLRA). The bill goes into effect Jan. 1, 2026. If the NLRB remains without a quorum at that time, employers in California could face overlapping legal exposure in both state and federal forums.
Preemption Challenges
For the reasons explained in detail in our post regarding the New York NLRB Trigger Bill, California’s proposed legislation is likely preempted by the NLRA, because the NLRB has exclusive jurisdiction over issues expressly or arguably to the NLRA. To that end, both the NLRB and Amazon.com Services LLC promptly filed lawsuits to block the New York NLRB Trigger Bill. Similar litigation is anticipated in response to AB288.
What Should Employers Do?
For now, employers should continue to monitor attempts to supplant the Board as other states, such as Massachusetts, are considering similar legislation. The BakerHostetler Labor Relations Team will continue to closely monitor any developments regarding these state bills and how they may impact employers.
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