The National Labor Relations Board (NLRB) just sued New York over its new labor law that attempts to regulate areas that the Board claims are “explicitly reserved for federal oversight.” As more states consider measures to protect workers as federal labor regulation remains uncertain, the NLRB is making its stance clear through its September 12 lawsuit by arguing these types of measures are preempted by the National Labor Relations Act (NLRA). We’ll explain everything that employers and labor practitioners need to know.

Quick Background

For most of this year, the Board has lacked the three-member quorum it needs to adjudicate cases or set new legal precedent. (Get caught up by reading our prior insights here, here, and here). On top of the quorum issue, a federal appeals court recently halted the NLRB from prosecuting unfair labor practice complaints as several courts hear constitutional challenges to the agency’s structure.

In response, several states have moved to assert or expand their own jurisdiction in areas reserved for the Board under the NLRA. Much of the push for state legislation is from labor proponents (including many unions) pointing to the fact that the NLRB isn’t functioning as designed. The lack of quorum means significant case-processing delays, which labor advocates argue leaves workers without remedies.

However, even if the NLRB is hamstrung, Congress has not delegated states the power to regulate private sector labor. This makes state attempts to do...

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