NLRB sues California over new 'trigger' labor law

The National Labor Relations Board sued California to block enforcement of a new law that seeks to expand the state's authority to protect workers. AB 288 is a "trigger law," written to fill the void when federal entities cannot or will not act.

The law's fate will now lie with the same federal court that last month ruled a different California labor law was preempted by the National Labor Relations Act. Some labor law specialists say the new law is likely to meet the same fate as SB 399, which attempted to ban employers from forcing workers to attend "captive meetings."

"While I appreciate the legislative need, I doubt that this statute passes constitutional muster," said Stanford Law School emeritus professor William B. Gould IV. "A long line of preemption rulings concludes that where Congress has legislated comprehensively, as it has through the NLRA, state jurisdiction over the same subject matter is constitutionally precluded--even if the federal government is failing to do its job, as is the case now."

In the federal government's complaint, labor board trial attorney Chad A. Wallace wrote of AB 288 that "an injunction against its enforcement is necessary because it creates a parallel regulatory system that undermines the federal labor policy Congress designed to be national in scope." He asked for temporary and permanent injunctions barring enforcement of Section 2, which gives the California Public Employment Relations Board the ability to enforce the federal act if "the NLRB has expressly or impliedly ceded jurisdiction." National Labor Relations Board v. State of California, 2:25-cv-02979-TLN-CKD (E.D. Cal., filed Oct. 15, 2025).

"The NLRB's authority is exclusive in matters covered by the NLRA, and it preempts state regulation in these areas," Wallace wrote. "This preemption ensures a uniform national labor policy by preventing states from enacting laws or regulations that could disrupt the balance established by federal law."

"The underlying preemption doctrine--which by the way is court-created, it's not in the statute itself--presumes that there will be a functioning and independent National Labor Relations Board, a board of subject matter experts," said Jennifer Abruzzo, who served as NLRB general counsel under President Joe Biden and reviewed draft language for AB 288. "That no longer exists. There is no longer a functioning or independent preemption regime."

Gould said that he wishes California could step in. But he noted the complaint cites a seven-decade-old U.S. Supreme Court case that found state labor boards cannot assert authority over labor disputes that fall within the act, even when the NLRB declines to act. Guss v. Utah Lab. Rels. Bd., 353 U.S. 1, 9 (1957).

But UC Berkeley Law professor Catherine Fisk pointed out a federal appellate case this year, finding that exclusive forum rules no longer apply when a federal agency "is not functioning as Congress intended" because of presidential firings. National Association of Immigration Judges v. Owen, 139 F.4th 293, 304 (4th Cir. 2025).

"If the NLRB is not functioning as Congress intended, as it hasn't since January, then the NLRA cannot constitutionally preempt state law," Fisk said.

Samuel Estreicher, the director of the Center for Labor and Employment Law at NYU School of Law, called AB 288 "a form of symbolic politics."

"I believe AB 288 is clearly preempted by the NLRA," Estreicher said. "Congress set up a special agency to implement the labor law with exclusive jurisdiction and provided for state jurisdiction only in Section 14(c) only when the NLRB 'declines jurisdiction over a labor dispute,' which it hasn't in this case."

Estreicher added that the law might have a better shot if the NLRB had ceased operations, but it has not. The five-member board has lacked a quorum since just after President Donald Trump took office in January. Last week, the U.S. Senate Committee on Health, Education, Labor, and Pensions approved Trump's nominations of Crystal Carey as the board's general counsel and James Murphy to an open seat. These now head to the full Senate, which could restore the board to its three-member minimum.

Mark Theodore, a partner in the Labor & Employment Law Department with Proskauer Rose LLP in Los Angeles, said it makes "little difference" whether the board has a quorum.

"The notion that there exists some gap in coverage or that the California Legislature is filling some void when there is no quorum at the NLRB or some other trigger is simply untrue," Theodore said. "There is no period of time where the NLRB is not functioning. Indeed, the NLRB filed this lawsuit in the middle of the government shutdown protecting its interests and the interests of all private-sector employers and unions operating subject to the National Labor Relations Act."

Abruzzo questioned why the federal government was able to find the resources to challenge a law that will not go into effect until January during the shutdown. But she conceded that even if this violates the Antideficiency Act, a federal law that bars the spending of money Congress has not approved, that alone probably is not enough to stop the case.

Other states have also attempted to step into this perceived void. Massachusetts lawmakers are considering two bills that would trigger state labor protections if federal laws became unavailable or inapplicable. Last month, New York Gov. Kathy Hochul signed a law creating a mechanism by which the New York Public Employment Relations Board can step into private-sector labor disputes. The NLRB sued to preempt it one week later. National Labor Relations Board v. State of New York, 1:25-cv-01283-GTS-ML (N.D.N.Y., filed Sept. 12, 2025). The case is ongoing.

Late last month, U.S. District Judge Daniel J. Calabretta ruled that the 2024 law barring "captive employee" meetings was preempted by the act. His ruling on SB 399 did not mention the lack of a quorum on the board. California Chamber of Commerce v. Bonta, 2:24-cv-03798-DJC-SCR (E.D. Cal., filed Dec. 31, 2024).

"In these unprecedented times, we will continue to do whatever we can to protect workers' rights to organize," said Erin Lehane, political director of the International Brotherhood of Boilermakers, Western States, which was one of the sponsors of the new law. "AB 288 is one effort the Legislature broadly supported to do just that. Regardless of the federal reaction, we will continue to work tirelessly to ensure that California workers are afforded the rights that they deserve and that we value in California."