Last week, a U.S. district court blocked California from enforcing most of its expansive new labor law, AB 288. Had it taken effect, AB 288 would have allowed a state agency, the Public Employment Relations Board (PERB), to process cases previously handled by the National Labor Relations Board (NLRB). The NLRB sued on preemption grounds to protect its own authority, and the district court largely agreed that AB 288 was preempted by federal law. The court however, left some parts of AB 288 in place. The mixed ruling potentially sets up appeals from both sides. But in the meantime, labor law in California returns (mostly) to the status quo.
Why did California enact AB 288?
California enacted AB 288 against a backdrop of turmoil at the NLRB. In 2024, the NLRB came under fire in a series of lawsuits challenging its structure. These lawsuits argued that the NLRB’s members and/or its administrative law judges were improperly protected from removal by the president. By statute, neither the judges nor the members can be removed except for cause. The challengers argued that those removal protections interfered with the president’s ability to manage the executive branch. The results in court were mixed. Some courts found that private parties could not raise these arguments because the parties could not show they had been harmed by the removal protections. But in August, the U.S. Court of Appeals for the Fifth Circuit agreed with the challengers in one case and enjoined the NLRB.
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