On Tuesday September 30, 2025, California Governor Gavin Newsom signed Assembly Bill 288 ("AB 288"), which grants a California state agency the authority to enforce federal labor law in the absence of action by the National Labor Relations Board ("NLRB").
With this bill, California joins the State of New York in passing legislation that allows state agencies to usurp the powers delegated to the NLRB by Congress, as we discussed here.
AB 288 arrives at a time where there is still major uncertainty at the NLRB as it still lacks a quorum and Trump's recent nominees to the Board are still pending confirmation by the Senate. In addition, the NLRB has discontinued all but emergency functions, including ceasing all casehandling of representation petitions and unfair labor practice charges, postponing hearings and elections, and furloughed 1,181 of the agency's 1,195 employees in light of the federal government shutdown and lapse in appropriation of funds. The NLRB's contingency plan and website described emergency situations that would necessitate action by the agency during the shutdown as current or imminent labor disputes which are adverse to the public interest. The uncertainty around when the NLRB's full functions will be restored combined with the pro-employer approach of the Trump administration, demonstrate why such state legislation has popped up in progressive states that have otherwise in recent years bolstered employee and union protections.
AB 288
AB 288, which amends sections of the California labor code, would expand the jurisdiction of California's Public Employment Relations Board ("PERB") and allow PERB to resolve private sector issues of federal labor law and grant appropriate relief if the NLRB has expressly or impliedly ceded jurisdiction.
To fall under the jurisdiction of this bill, an employee or union either: (A) would have been subject to the NLRA as of January 1, 2025, but lost coverage because the NLRA was repealed, narrowed, or enforcement was enjoined; or (B) would have been subject to the NLRA as of January 1, 2025, but the NLRB has ceded jurisdiction. Such employee would be able to petition PERB to: process any representative petition previously filed with the NLRB; certify an exclusive bargaining representative that has previously been certified by another state or federal agency, or that has been selected by the majority of employees in an appropriate bargaining unit through an election, through other legal processes recognized by PERB or the NLRB at that time the selection is made, or through a written designation; and decide unfair labor practice charges.
The bill outlines that the NLRB will be deemed to have ceded jurisdiction in any of the following as of January 1, 2026:
(i) For cases where a certification of the results of an election, including a certification of representative, or administrative law judge decision has been issued, or where challenges or objections to a representation election are pending before the National Labor Relations Board, when there is a lack of a quorum of the National Labor Relations Board, or when the National Labor Relations Board has lost its independence as a result of the Supreme Court finding that National Labor Relations Board members are unconstitutionally protected from removal or when the continued processing of a case is enjoined by a court due to constitutional challenges to the Board's structure or authority.
(ii) For cases where no certification or complaint or decision has been issued, when there are processing delays resulting in the worker's case remaining pending before a regional director for more than six months without the issuance of a complaint or certification of an election, or remaining pending more than six months after a complaint has been issued without the issuance of a decision by an administrative law judge or without the issuance of a decision about the certification by the National Labor Relations Board.
(iii) For cases where a certification of the results of an election, including a certification of representative, or other reviewable order has been issued by the regional director or administrative law judge, when there are processing delays resulting in failure by the National Labor Relations Board to accept or decline review or grant special permission to appeal for more than six months following the filing of a request for review or for special permission to appeal.
(iv) For cases on review or exceptions before the National Labor Relations Board, when there are processing delays resulting in the case remaining pending for more than 12 months without the issuance of a final decision.
In addition to allowing PERB to order any appropriate remedy, including injunctive relief and penalties to resolve unfair labor practice charges, AB 288 grants PERB the authority to assess civil penalties in the amount of $1,000 per worker per violation to employers it finds have engaged in a pattern or practice of committing unfair labor practices.
PERB also has the authority to order employers to participate in binding arbitration when more than 6 months have passed and parties engaged in negotiations have failed to reach a collective bargaining agreement.
Anticipated Legal Challenges
Similar to the New York counterpart which we discussed here, AB 288 will likely face legal challenges. Both the NLRB and private companies have sued to block the New York law, and it is anticipated that AB 288 will face similar challenges in court.
The main challenge to legislation like AB 288 is that such legislation is preempted under the NLRA as it creates a state system that undermines federal labor law passed by Congress. Under a long line of Supreme Court precedent, states generally may not regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits. See San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959) ("When an activity is arguably subject to §7 or §8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board").
The text of the bill notes that the state of California "recognizes that existing federal law cannot prevent it from doing its part to enforce and further the rights recognized by the NLRA, which stem from an individual's inherent sovereignty and from the United States and California Constitutions," signaling that the state may be prepared to defend against the anticipated legal challenges.
Key Takeaways
Despite the current shutdown of the NLRB and passage of this bill, employers should continue to be mindful of and continue to comply with existing federal labor laws. Unless and until a federal court enjoins AB 288, however, PERB may begin to exercise its authority under the bill to adjudicate unfair labor practice charges and conduct union elections in the private sector within the limits of the text of the bill. The anticipated legal challenges AB 288 is likely to face, may also delay any exercise of PERB's new authority.
Employers with specific questions or concerns about this legislation, or any labor relations issues, should consult with counsel. We will continue to monitor for any new developments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
