Amazon workers at the JFK8 fulfillment center in Staten Island are caught in a labor-law no-man’s land. Amazon has challenged the constitutionality of the National Labor Relations Board (NLRB) in federal court, seeking to block the Board’s remedies. Still, when those same workers sought labor protections under New York’s labor law, Amazon invoked Garmon preemption to block the state from acting. The result: workers have nowhere to go.
This situation might sound like a niche doctrinal issue. It is not. As employers and their legal and political proxies succeed in paralyzing the NLRB or evading its authority through employee classification arguments, states can step in to fill the gap. New York has done so in response to the Board’s lack of quorum; California has acted in response to the Board’s diminished capacity to promptly address workers’ grievances; Washington followed by enacting a state trigger law; Rhode Island might take on the case of student employees who face employee classification issues. In each of those situations, employers advocate against de jure or de facto NLRA authority, while invoking preemption when workers turn to state law.
This cannot be right, and indeed it isn’t.
Garmon preemption was never intended as a blanket prohibition of state authority. Garmon prohibited state authority over issues protected, prohibited, or arguably protected or prohibited by the NLRA — a broad judicial declaration of uniform federal authority, but not an absolute one. ...
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