New York Becomes First State to Step In for NLRB

New York became the first state to authorize its labor board to step in for the NLRB when it lacks a quorum, under a new law signed by Gov. Hochul (D-NY).  

The law: NY S 8034-A empowers the state’s existing Public Employment Relations Board (PERB) to perform the NLRB’s usual functions including adjudicate unfair labor practice disputes, oversee union elections, and certify union representation. The law is designed to take effect only when the NLRB lacks a quorum (as it does now) or declines—or is unable—to exercise jurisdiction over private sector labor issues.  

• The bill’s text, along with comments from its drafters and Gov. Hochul, make it clear that the law responds to the NLRB’s current inability to function. Proponents see the law as a necessary step to protect workers in the absence of the NLRB.  

More to come? California and Massachusetts are close to passing similar legislation with other states likely to soon follow. 

• States stepping in to fill the NLRB’s quorum void reflects the broader surge of state labor and employment laws amid federal inaction. Still, this marks a significant escalation in the state–federal clash over workplace regulation. 

Legal challenges: The National Labor Relations Act and the NLRB have historically had broad preemption authority, meaning that any state or local law falling within the NLRB’s jurisdiction is preempted and rendered invalid.  

• The New York law—and any other similar measures—are likely to trigger lawsuits challenging them on preemption grounds.  

• Such lawsuits appear likely to succeed, although the New York law’s narrow trigger—limiting its effect to periods when the NLRB is not functioning—could provide a loophole to escape preemption challenges.  

Employer takeaways:  

• Two nominees for the Board are pending in the Senate; if confirmed, they would restore the NLRB’s quorum and could render these state laws moot.  

• Full confirmation could take weeks if not months—ample time, for example, for a union to be certified in New York—and may face delays due to populist Republican opposition led by Sen. Hawley (R-MO).  

• Numerous lawsuits challenging the NLRB’s constitutionality are inching closer to eliminating the agency as is, in which case these state laws would take effect and likely encouraging more states to pass similar legislation.  

• If the NLRB is eventually shuttered, the current uniform federal labor standard may become a fractured patchwork across the states.  

• Key labor law issues—union certification, the scope of employee protections, etc.—may be decided differently depending on the state labor board with jurisdiction, creating significant difficulties for employers with regards to compliance and a uniform labor relations strategy.