Routing Around Inaction

Several states are considering “trigger” laws that would allow their own labor authorities to effectively enforce labor laws if the National Labor Relations Board (NLRB or Board) fails or is unable to do so.

This legislative trend is a response to several months in which NLRB has been without a quorum and therefore unable to issue decisions. The NLRB lost its quorum on January 27, 2025, when President Trump fired then-Board Member Gwynne Wilcox, who has contested her dismissal in court.

Instead of standing by idly until the Trump administration appoints new members (who must also be confirmed by the Senate), California, Massachusetts and New York have introduced legislation that would allow each state to regulate private sector labor relations if certain conditions, or triggers, are met.

However, there is doubt whether these laws could survive judicial scrutiny if challenged in court. This is because the National Labor Relations Act (NLRA or the Act) is the federal law that regulates private labor relations and states are generally prohibited from regulating the same conduct pursuant to the hierarchy of legal authority set forth in the Constitution’s Supremacy Clause, which is known as “preemption.”

Although these states see the Board’s present inactivity as precisely the opening for them to avoid preemption and effectively (at least in their view) administer the NLRA, the relatively broad scope of preemption may doom their efforts, regardless of whether the NLRB has a quorum. Legal validity aside, as a policy matter, these states’ efforts if upheld could pave the way for states with contrary views on NLRA enforcement to enact their own laws, creating a patchwork of labor schemes around the country.

California’s Trigger Legislation – AB 288

On June 2, 2025, the California State Assembly approved a trigger bill that the California State Senate is currently taking up.

The bill has several triggers. First, a worker may petition California’s Public Employment Relations Board (PERB) to vindicate their rights if they lose coverage under the NLRA because the NLRA is repealed or narrowed and they are not covered by a similar labor law. A worker may also obtain protection under California law if they lose access to “an independent, effective and functioning legitimate and expert” NLRB, due to the absence of a Board quorum or a lack of funding or staffing prevents the Board from fulfilling its statutory duties. In addition, the California law would kick in if a worker seeks to protect their rights under the NLRA but the Board fails to provide a determination or remedy after a certain period, including (1) if more than six months have passed since the worker filed an unfair labor practice charge alleging an employer’s failure to engage in good faith bargaining or retaliatory discharge but neither the NLRB nor an Administrative Law Judge from the Board has issued a remedial order, and the Board has failed to seek injunctive relief or (2) if more than six months have passed since a union has prevailed at a Board-conducted representation election but the NLRB has failed to make a determination on challenges or objections to the election results.

If any of these conditions are met, California’s PERB may take several actions, such as deciding objections or challenges to Board-conducted elections, certifying a union as workers’ exclusive bargaining representative, or deciding unfair labor practice cases and ordering civil penalties in those cases if appropriate. Notably, the PERB may also order that an employer participate in binding mediation to finalize CBA negotiations if first contract bargaining has taken place for over six months without agreement by the parties.

Massachusetts’ Trigger Legislation– H.2086/S.1327

Massachusetts, for its part, has proposed a bill that the Commonwealth’s Joint Committee on Labor and Workforce Development will consider at a hearing on July 15, 2025. The bill would allow Massachusetts’ Department of Labor Relations to regulate private labor relations should the NLRA cease to preempt state law. This trigger is not explained in further detail in the bill’s current text. If the condition is met, the Department of Labor Relations must, upon a union’s request, promptly certify it as the exclusive bargaining representative of any bargaining unit that the NLRB previously certified. In addition, the Department of Labor Relations would be empowered to pursue extensive remedies should it find that an employer has discriminated against an employee for engaging in union activity. Potential remedies include back pay, front pay, consequential damages, liquidated damages equal to three times the amount of damages awarded, punitive damages, attorneys’ fees, or civil penalties for each legal violation no less than $10,000.

New York’s Trigger Legislation – S8034-A/A08590-A

Finally, New York is considering its own trigger law. The New York State Assembly approved the bill on June 17, 2025, and it now awaits action by Governor Kathy Hochul. This legislation provides that, unless the NLRB “successfully asserts jurisdiction over any employer, employees, trades, or industries pursuant to an order by [a] federal district court,” New York’s Public Employment Relations Board will, “upon application and verification, promptly certify the exclusive bargaining representative of any bargaining unit previously certified by another state or federal agency.”

Potential Preemption

Should any of the bills become law, court challenges would be expected because the regulation of private sector labor relations by these states may be at odds with a seminal 1959 Supreme Court decision on NLRA preemption, San Diego Building Trades Council v. Garmon, where the court held that states may not regulate activity that the NLRA protects, prohibits, or “arguably” protects or prohibits. The state laws would regulate unfair labor practices prohibited by, or union certifications protected by, the NLRA, casting doubt on their validity under Garmon.

The sprawling remedial scheme in the Massachusetts bill, which includes liquidated and punitive damages, may be particularly susceptible to preemption under Wisconsin Department of Industry, Labor and Human Relations et al. v. Gould Inc. Following state law, Wisconsin debarred employers found to have violated the NLRA three times from competing for state business. The Supreme Court found that the NLRA preempted Wisconsin’s debarment scheme on the grounds that, under Garmon, states are forbidden from providing their own remedies for conduct prohibited or arguably prohibited by the NLRA. Massachusetts’ law, like Wisconsin’s, would provide various remedies for NLRA violations that the NLRA not only does not contemplate but which, under long-standing Supreme Court precedent, are generally prohibited due to the remedies’ punitive nature.[1] In addition to Wisconsin’s remedies, the Gould court found problematic the fact that the state law served “plainly as a means of enforcing the NLRA,” similar to the way the Massachusetts bill seems to operate.

California’s bill could also face difficulties in a preemption challenge. Its bill would permit state labor authorities to decide questions of federal labor law if the NLRB fails to act in an administrative proceeding within six months, an arbitrary timeframe that the Board is not required to follow, and often does not, even when it has a quorum. California’s law would also subject employers to binding mediation to determine working conditions, a remedy generally foreclosed under the NLRA, which focuses on good-faith bargaining over those conditions.[2]

Because the labor schemes envisioned by each state bill provide for unique regulatory and remedial frameworks, it may not be dispositive to the preemption analysis that the NLRB lacks a quorum or a state believes for other reasons that the NLRA is presently ineffective in regulating labor relations. As the Supreme Court explained in Gould, permitting a state to grant a remedy that Congress withheld from the NLRB “only accentuates the danger of conflict,” because “the range and nature of those remedies that are and are not available is a fundamental part of the comprehensive system established by Congress.”

Until there is more clarity on the reach of these pieces of legislation, employers and others should monitor the bills as they progress in each state capital.

[1] See, e.g., Republic Steel Corp. v. NLRB, 311 U.S. 7, 11 (1940) (“We do not think that Congress intended to vest in the Board a virtually unlimited discretion to devise punitive measures, and thus to prescribe penalties or fines which the Board may think would effectuate the policies of the Act.”); Gould, Inc., 475 U.S. at 288 fn. 5 (finding that punitive sanctions are inconsistent “with the remedial philosophy of the NLRA”).

[2] See H.K. Porter Co. v. NLRB, 397 U.S. 99, 103 (1970) (“The object of this Act was not to allow governmental regulation of the terms and conditions of employment, but rather to ensure that employers and their employees could work together to establish mutually satisfactory conditions.”).