Navigating State-Federal Tensions in Labor Regulation: California’s AB 288 Expands PERB Authority

In an article, Judy Juang of Kelley Drye & Warren LLP explains how California’s new Assembly Bill 288 (AB 288) marks a major shift in labor regulation authority. Enacted after months of National Labor Relations Board (NLRB) inactivity due to a lack of quorum, AB 288 authorizes the state’s Public Employee Relations Board (PERB) to assume functions typically reserved for the NLRB. These include conducting union elections, adjudicating unfair labor practices, and imposing binding arbitration or civil penalties, powers that apply when the NLRB lacks a quorum, is enjoined by court order, or fails to act within statutory limits.

Juang notes that AB 288 directly challenges the long-standing federal preemption doctrine under the National Labor Relations Act (NLRA), which the Supreme Court has interpreted to give the NLRB exclusive authority over private-sector labor relations. The US Supreme Court’s decision in New Process Steel, L.P. v. NLRB (2010) held that the NLRB cannot act without a quorum, an operational gap California now seeks to fill. Similar legislation in New York has already drawn federal litigation, suggesting California’s broader version may face comparable challenges.

For compliance officers, Juang advises vigilance in navigating potential dual-track enforcement. Employers should align labor policies with both the NLRA and AB 288 standards, train HR teams on PERB procedures, and monitor for overlapping claims before both agencies. While AB 288’s survival in court is uncertain, its enactment signals a growing state-level assertiveness in labor regulation, an important development for compliance leaders to track closely.