 California passed AB 288, dubbed the “NLRB Fill-In” Law, that allows the state to fill in the gaps of federal agencies that are unwilling or unable to act. The National Labor Relations Board (NLRB) was gutted by Trump early last year, leaving the board without a quorum necessary to handle the growing backlog of labor disputes. The NLRB Fill-In law would have allowed the state’s labor board to take over cases when the NLRB takes too long to make decisions or remains quorumless.
A federal district court recently blocked the most important parts of this law. The judge ruled that the National Labor Relations Act (NLRA), which created the NLRB, preempts any California law. The court explained that California cannot simply take over federal responsibilities just because the state thinks the federal agency is moving too slowly or lacks independence. To keep labor rules consistent across the nation, the court decided that the federal government must maintain exclusive authority over private-sector labor issues. However, the court left some parts of the law intact, but only when the NLRB explicitly declines jurisdiction or workers lose coverage under the federal agency. Lauren Teukolsky has represented workers for over two decades and her commentary on the latest developments in employment law is regularly featured by major publications such as Bloomberg Law, Law360, Law.com, and the Los Angeles Times. If you would like to speak with her about an employment matter, click here. For our previous coverage on AB 288, click here.
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 A federal court has blocked California’s “captive audience” law, halting Senate Bill 399, which was to take effect on January 1, 2025. The law would have prevented employers from requiring employees to attend workplace meetings on political, religious, or union topics, allowing employees to opt out without fear of retaliation. Supporters argued it protected workers from coercive tactics, while business groups claimed it infringed on employer speech and conflicted with federal labor law.
The California Chamber of Commerce sued to block the law, claiming it encroached on the National Labor Relations Act (NLRA), which grants the National Labor Relations Board (NLRB) authority over private-sector labor relations. The U.S. District Court granted a preliminary injunction, finding S.B. 399 is likely preempted by federal labor law and violates the First Amendment by targeting employer communications based on content. Employers are allowed to hold “captive audience” meetings as litigation on S.B. 399 continues. For more on the latest developments in employment law, visit our blog here. For our previous coverage on S.B. 399, click here. If you believe your employer may have violated workplace laws, click here to get in touch with our office.  President Donald Trump’s recent attacks on the National Relations Labor Board (NLRB) have disrupted the Board’s operations. The quasi-judicial body traditionally consists of five board members appointed by the president with the consent of the Senate. But recently, partisan congressional gridlock in the Senate stalled replacements for two Board member vacancies. Since Trump assumed office on January 10, 2025, his directives and firings have forced the Board to further undergo a chaotic restructuring of its remaining three board members.
On his first day in office, Trump appointed current member Marvin E. Kaplan to be the Board chairman, and later fired Democratic board member Gwynne Wilcox. The NLRB needs at least three Board members to establish a quorum, but without Ms. Wilcox, the Board only has two members. A growing concern is that Trump’s true intent is to paralyze the functioning of the NLRB. Without a quorum, the NLRB is unable to issue new decisions or respond to appeals, which benefits employers. Companies who receive adverse rulings from Administrative Law Judge can simply appeal to the quorum-less NLRB. The Board is without power to review the charge, meaning it would remain in limbo indefinitely. Meanwhile, employers may simply continue business as usual. Wilcox filed a lawsuit alleging her firing was unlawful. A federal judge agreed, ordering her reinstatement. But a federal appeals court stayed the order reinstating her, signaling it intends to rule in Trump’s favor. It’s likely that the Supreme Court will weigh in on this issue. The case will test the Supreme Court’s willingness to reign in Trump’s power. The Supreme Court historically upheld job removal protections for agency officials under the 90-year-old precedent Humphrey’s Executor. The Court has recently started chipping away at the ruling but has yet to outright overrule the precedent. If the Supreme Court rules in favor of Trump it could mean dramatic changes to almost all administrative agencies. |
AuthorLauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation. Archives
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Teukolsky Law, A Professional Corporation, represents clients throughout California. Ms. Teukolsky is admitted to practice in the State of California, as well as the United States Supreme Court, Ninth Circuit Court of Appeals, Northern District of California and Central District of California. Disclaimer.
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