On September 30, 2025, Governor Newsom signed AB 288 into law, which expands the jurisdiction of California’s Public Employment Relations Board (PERB) by allowing it to enforce private-sector labor rights when the National Labor Relations Board (NLRB) is unable or unwilling to act.
This move comes as the NLRB remains unable to act due to a lack of quorum—and as California pushes to fill the gap for workers seeking timely labor protections.
PERB’s Jurisdiction
To fall under AB 228’s jurisdiction, an employee or union must either: (1) have been covered by the NLRA as of January 1, 2025, but lost coverage due to its repeal, limitation, or halted enforcement; or (2) have been covered by the NLRA as of that date, but jurisdiction was ceded by the NLRB.
Under AB 228, NLRB jurisdiction is deemed ceded where:
- A certification of election results or administrative law judge (ALJ) decision has been issued, or challenges to a representation election are pending. Jurisdiction may shift if the NLRB lacks a quorum or loses independence due to a Supreme Court ruling on unconstitutional removal protections, or if court injunctions halt case processing due to constitutional challenges to the NLRB’s structure or authority.
- No certification, complaint, or decision has been issued, and a case remains pending before a regional director for over six months without a complaint or election certification, or more than six months after a complaint without an ALJ decision or NLRB ruling on certification.
- A regional director or ALJ issues a certification or reviewable order, and the NLRB fails to accept or deny review or special permission to appeal within six months of the request.
- A case is pending before the NLRB on review or exceptions for over 12 months without a final decision.
- A qualifying employee or union may petition PERB to: process pending NLRB representation petitions; certify a representative previously certified by another agency or selected by majority support through an election, legal process, or written designation; and adjudicate unfair labor practice charges.
PERB’s Authority Under AB 288
AB 288 authorizes PERB to impose any appropriate remedy for unfair labor practices, including injunctive relief and penalties. It may also assess civil penalties of $1,000 per worker, per violation, against employers found to engage in a pattern or practice of such violations.
Additionally, PERB can order employers into binding arbitration if negotiations have failed to produce a collective bargaining agreement after more than six months.
Preemption Concerns Under the NLRA
AB 288 will likely face legal challenges. Specifically, the NLRB has warned that such laws may be preempted by federal law (NLRA). A similar law in New York is already being challenged in court — and litigation in California is likely.
Key Takeaways for Employers:
Employers should review their labor policies and practices to minimize the risk of unfair labor practice claims. With continued delays at the NLRB, they should also be prepared for cases to shift to California’s PERB. Internal procedures for handling complaints and investigations should be updated to ensure consistency across different legal forums. Finally, employers should stay alert to legal developments, as pending or future court challenges could significantly narrow or alter the scope of the new law.
Conclusion
AB 288 is a controversial attempt by California to protect workers amid federal gridlock. While its long-term future will likely be decided by the courts, the law is now in effect. Employers operating in California should prepare for a more complex and uncertain labor enforcement landscape.