California Joins New York in Trying to Fill a Void on Worker Protections

California appears poised to become one of the first states in the nation to take over the job of protecting its workers — a role the Trump administration has essentially abdicated. But the Golden State’s lawyers will probably have to win in court before that process actually begins.

Gov. Gavin Newsom’s signing of Assembly Bill 288 in September effectively preempts federal law, allowing California workers and organizers to bring workplace complaints or charges directly to a state-run agency and sidestep the dysfunctional National Labor Relations Board.

The measure would throw a lifeline to unions and workers currently stymied by what amounts to the dismantling of the NLRB — but only if it survives a fierce legal challenge, like the one currently playing out in New York over a similar law. Newsom signed the bill knowing that it’s likely to quickly be tied up in court, a reality the bill’s author also freely acknowledges.

So why bother?

“Because we in California have decided that we are at least going to try,” said State Assemblymember Tina McKinnor (D-Inglewood). “We will not sit idly by while our workers are being exploited.”

McKinnor’s measure represents the latest pushback against the Trump administration’s efforts to undermine organized labor and weaken its influence. Put simply, it says that if the National Labor Relations Board isn’t meeting, then California-related labor issues — including the right to organize or join a union in the first place — may be brought before a state agency.

The bill is a direct response to Trump’s firing of one member of the NLRB and his refusal to fill that position; he has designated nominees for the two other vacancies on the five-person board, but the Republican-controlled Senate has not acted. The result is a lack of the three-member quorum necessary to adjudicate even the most routine labor issues.

The board is thus unable to hear workplace complaints or requests. This seems to suit Trump’s efforts — despite his wooing of unions in the run-up to the 2024 election — to shift the power dynamic further in favor of employers, who already hold considerable sway under federal law and past court rulings.

“When the NLRB lacks a quorum, it transforms federal supremacy into federal silence,” McKinnor said in an interview. “The administration effectively prevented any worker, public or private, from being able to join a union in the foreseeable future. That’s totally un-American.”

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What is totally American is the court system, and that’s where McKinnor’s bill is almost certainly headed. After a similar measure passed the New York Legislature, the NLRB sued that state in federal court, claiming that the law “unlawfully usurps” the board’s authority and is preempted by the National Labor Relations Act. McKinnor said she had not read the New York law, but noted that state and California are often national standard-bearers for pro-labor legislation.

The notion of preemption lies at the heart of all this. The California law, scheduled to take effect on Jan. 1, would permit the state’s Public Employee Relations Board to hear a case when the National Labor Relations Board “has expressly or impliedly ceded jurisdiction.” The measure defines that as occurring if a regional arm of the federal board hasn’t acted on a complaint or election certification for more than six months, or when the NLRB lacks quorum — as it does right now.

In other words, if the feds can’t do their jobs, the state will step in. But while the intent of the bill is simple, the law around it isn’t.

The California measure “raises serious constitutional questions,” said Tashayla Billington, a partner at CDF Labor Law, a firm that represents employers on labor and employment issues. The attorney said that the state law ventures into territory that is traditionally reserved for federal oversight.

“When federal law covers a particular area, it overrides or preempts state law in that same area,” Billington told Capital & Main. “States generally can’t pass or enforce laws that conflict with federal statutes or intrude into areas Congress intended to regulate exclusively — like private sector labor relations under the NLRA,” the National Labor Relations Act.

The powerful California Chamber of Commerce agrees. “While we understand  [the] uncertainty that is occurring as a result of the current federal administration, AB 288 is plainly preempted by federal law,” Ashley Hoffman, the pro-business group’s senior policy advocate, wrote in the Chamber’s letter opposing the measure. “Even if it were upheld, the consequence would be two different entities interpreting federal law with [California] having the explicit right to disregard NLRB precedent.”

Of course, the National Labor Relations Board isn’t doing anything right now, and it hasn’t since Trump’s unprecedented January firing of board member Gwynne Wilcox, a Democrat, without citing a cause. Wilcox sued; the case is still in court, with the U.S. Supreme Court having allowed Trump’s action to stand in the meantime.

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Although the new California law is designed to give workers and unions a boost, it attracted bipartisan support in the State Assembly, where two of the bill’s co-sponsors were Republicans and it went to the Senate on a 68-2 vote. The Senate tally broke down along party lines in the overwhelmingly Democrat-controlled chamber.

“With the federal government not only asleep at the wheel but driving into oncoming traffic, it is more important than ever that states stand up to protect workers,” Gov. Newsom said in a news release announcing his signing in late September. “California is a proud labor state — and we will continue standing up for the workers that keep our state running and our economy booming.”

That said, the ultimate fate of AB 288 likely will rest with the courts, just as the New York measure does, and that could take months — or years, depending upon appeals — to resolve. In the NLRB’s federal lawsuit, the agency argues that the New York law is preempted by federal statute under the Supremacy Clause of the Constitution. California’s new law is walking that same line.

“If upheld, AB 288 could fundamentally reshape the balance of labor-management power in California,” Billington said. “Unions could get a faster and potentially more favorable forum for pursuing unfair labor practice charges or organizing disputes. In practical terms, AB 288 could make California one of the most union-friendly jurisdictions in the country.”

That’s the idea, McKinnor said.

“This is still a union state,” she said. “We’re still a Democratic state. And we’re holding on strong and fighting for our people.”

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