Key points:
- The NLRB is paralyzed after the dismissal of member Gwynn Wilcox, leaving the board short of quorum.
- States including California, New York, and Massachusetts are pursuing labor legislation in response.
- Littler Mendelson’s 2025 Labor Day Report warns of a patchwork of conflicting rules for employers.
- Pending bills could trigger lawsuits as uncertainty grows over state versus federal jurisdiction.
With the National Labor Relations Board (NLRB) unable to conduct business due to a lack of quorum, state legislatures are seizing the opportunity to expand their authority in labor relations. California, New York, and Massachusetts are among those moving bills that would shift certain responsibilities traditionally reserved for the federal board. The development was outlined in Legaltech News coverage of Littler Mendelson’s 2025 Labor Day Report.
The paralysis stems from President Donald Trump’s January 27 decision to remove Democratic member Gwynn Wilcox, leaving only two sitting members—short of the three required for a quorum. Although Trump later nominated Scott Mayer, Boeing’s chief labor counsel, and James Murphy, a longtime NLRB lawyer, those appointments await Senate confirmation. Until then, the NLRB cannot act.
The Littler report highlights the potential consequences: “Multiple states are considering laws to transfer authority from the NLRB to their own local agencies. And in the process, they may de-federalize American labor relations.”
For employers, the shift raises the specter of navigating inconsistent state regimes layered on top of federal obligations. The lack of explicit preemption in the National Labor Relations Act complicates matters. While courts have historically treated NLRB authority as exclusive when conduct is “arguably” covered by the Act, current legislative activity could force new judicial tests of that doctrine.
Shannon Meade, executive director of Littler’s Workplace Policy Institute, said in a statement with co-chairs Alex MacDonald and Jim Paretti that employers should expect further volatility: “As the federal government pulls back on workplace regulation, states will look to fill perceived gaps in federal law, creating an even more complex web of state and federal regulation for employers to navigate.”
That complexity could mean increased litigation. Littler’s report cautions that if state bills are enacted, “employers, unions, and workers will be less certain about which law—state or federal—applies to their workplaces. That uncertainty will doubtless produce lawsuits.” On the other hand, if legislative momentum wanes, the state initiatives may stall.
