Abstract
The one thing that all American trade unionists can agree on is that the National Labor Relations Act (NLRA) does not work as it should. Cases languish through the appeals process for years, statutory remedies are weak and ineffectual, and longstanding legal doctrines seem to restrict workers more than empower them. Often, the mark of an experienced organizer is a knowing disillusionment with federal labor law, an understanding that the NLRA does not really deter union busting—especially when workers are up against a corporation large enough to absorb the cost of anti-union consultants and law firms as the cost of doing business. Because the law has long been ineffective, unions have already spent decades developing sophisticated organizing, policy, and legal strategies that do not rely primarily on the NLRA. This means that ironically, as right-wing federal judges now threaten the very existence of the NLRA and attempt to return jurisprudence back to pre-New Deal levels of deference to capital, the labor movement is, under the circumstances, actually quite well-prepared.
The unique character of the current moment, then, is not the desire or need for alternatives to the NLRA. This has already been true for generations. Rather, what is new is that the labor movement is coming to terms with the possibility of entering a post-NLRA landscape in the foreseeable future. Although a frontal assault by radical right-wing judges is not what any unionist would choose, for the first time in decades, our frozen and “ossified” labor law is thawing, becoming unstuck. But the shape of the labor law regime to come could take a variety of different forms depending on a slew of variables: the manner in which the current NLRA is ultimately dissolved, replaced, or amended (piece by piece or wholesale, by right-wing ideologues in the federal courts or by progressive legislation in Congress), the trends of public opinion on labor unions, the outcome of elections and factional struggles within the Democratic Party, and—most critically—the presence or absence of widespread, militant worker activity.
Seen through this lens, labor’s ongoing efforts to use state and local law to organize workers and raise standards carry a new significance. They are not simply alternatives to the NLRA, but also models for the federal labor legal regime of the future. If progressive forces have an opportunity to draft a new federal labor law, which could happen as early as 2029, it will undoubtedly be informed by the state and local policy enacted now and in the next few years. State laws have historically laid the groundwork for later federal legislation. For example, the right of workers to “refrain” from union activity, added to the NLRA by the 1947 Taft-Hartley Act, was first codified in a 1939 Wisconsin law intended to constrain the labor movement. In recent years, Jennifer Abruzzo, the dynamic general counsel of the Biden administration’s National Labor Relations Board (NLRB), showed us what a bold, pro-union labor law regime could look like. New state and local models can also help to set a standard and establish a strong initial bargaining position in the coming fight to enact a national labor policy that truly protects the right to organize in the twenty-first century.
History has shown us how the NLRA, a law designed to encourage organizing, became a straitjacket that induced many once-dynamic unions to become more conservative, bureaucratic, and legalistic. But we should avoid drawing the conclusion that the labor movement should reject law and policymaking as a tool. Law does not necessarily tilt in any particular direction—it is simply an arena of struggle just as organizing and politics are. The question is not whether unions will be regulated by law, but how: to divert worker energy into anodyne and ineffectual channels—or to encourage workers to organize, fight, and stand in solidarity with one another?
Noteworthy Developments
What follows is a survey of some recent state and local developments relating to laws granting organizing rights to workers currently excluded from the NLRA, laws directly raising pay and improving working conditions, industry boards setting standards for entire sectors, and so-called “trigger laws” that allow states to protect the right to organize if the NLRB is unable to do so. This is not intended to be an exhaustive treatment of state and local policy around the country, but a focused discussion of some sets of tools, drawing in part on our experience as in-house counsel for the Service Employees International Union (SEIU) Local 32BJ. Although not every policy specifically relates to unions or organizing, taken collectively, they represent some of the labor movement’s best efforts to empower workers today. They also sketch the outlines of what may be possible at the federal level in the future.
Workers Not Covered by the NLRA
The unionization of app-based rideshare drivers has long been a goal and a challenge for the labor movement. With no common workplace, even just finding fellow drivers is a tall task. Rideshare companies possess total control over communications to drivers through the apps, while organizers have no comparable access or ability to broadcast their messages. Yet despite these hurdles, over the past few years, rideshare drivers have increasingly taken collective action to demand improvements in their pay, benefits, working conditions, and job security.
Rideshare drivers also currently have no recourse to the NLRB, as the Board’s general counsel during the first Trump administration issued a 2019 advice memo positing that Uber drivers were independent contractors and therefore were not protected by the NLRA. It is unlikely that the current Trump NLRB would reverse course and bring rideshare drivers under the NLRA, especially because doing so could lead to the coverage of other groups of workers who are currently considered independent contractors. Yet it is precisely this exclusion from the NLRA that has created an opening for state-level collective bargaining frameworks, because the NLRA does not preempt state laws covering workers outside its ambit.
In Massachusetts, SEIU Local 32BJ and the International Association of Machinists and Aerospace Workers (IAM) launched a successful ballot initiative campaign to pass a law in November 2024 creating a framework for the unionization of rideshare drivers. Many of the law’s provisions improve upon the NLRA. The law provides for card check certification of a union. A first-contract arbitration provision guarantees that companies cannot drag out bargaining indefinitely and never reach an agreement. There are heavier penalties for unfair labor practices as well as an easier pathway for a union to receive a contact list of drivers. The law mandates a statewide, sectoral bargaining unit, which both avoids the lengthy delays that occur when companies litigate the scope of the unit and gives the union broad authority to negotiate common standards for the entire industry, taking labor costs out of competition. The Massachusetts statute has already become a model for other states, with California passing a similar law in October 2025, and an ongoing campaign to pass legislation in Illinois gathering momentum as of this writing.
From the perspective of a future federal labor law reform effort, the significance of these laws is that they demonstrate the importance of labor legislation that is tailored to the specific conditions of different industries. That is, they are not just stronger in a general way (although that is certainly helpful), but they set rules designed to encourage the unionization of this particular industry by addressing the specific challenges of organizing rideshare drivers. How might we imagine a future federal law regime devised to organize the strategic industries at the core of our twenty-first-century economy, and flexible enough to adapt to new patterns of the organization of work as they emerge?
Sectoral and Industry-Wide Standards
States and cities have also passed sector-specific minimum standards laws. In New York City, a coalition of unions and community groups, including SEIU Local 32BJ, passed the Fair Workweek Law in 2017, which provided scheduling predictability for retail and fast-food workers. The law was strengthened in 2021 with the addition of a prohibition on fast-food employers from terminating workers or substantially reducing their hours without just cause. In a sector with high turnover, more consistent schedules and just cause protections help to stabilize the workforce. Most recently, Starbucks agreed to pay nearly $39 million to settle allegations brought by the city that it engaged in widespread violations of the Fair Workweek Law—certainly a boon to the ongoing efforts of unionized Starbucks workers to win a first contract.
Industry boards have also acted as tools for state and local governments, along with allied labor organizations and advocates, to raise wages and support organizing for workers across a variety of sectors. Such boards are usually comprised of worker, governmental, and employee representatives, which through a deliberative process make recommendations for sectoral standards. This approach takes inspiration from New Deal-era tripartite industry committees, which were empowered under the Fair Labor Standards Act to set industry-specific minimum wages before the statute was amended to effectively abolish them at the federal level. 1 While they were active, they served as a democratic mechanism to shape sectoral standards for union and non-union workers alike, while also providing opportunities for unions to educate and organize non-union employees.
Contemporary state and local wage boards have shown signs of being able to recapture some of this earlier success, with Minnesota perhaps providing the most robust example. In 2023, the state passed legislation establishing the Nursing Home Workforce Standards Board (NHWSB) “to conduct investigations into working conditions in the nursing home industry and adopt rules establishing minimum employment standards reasonably necessary and appropriate to protect the health and welfare of nursing home workers.” 2 In 2024, the board voted to set a minimum wage of $19/hour in the nursing home industry, with higher minimum rates for certain categories of skilled medical workers. On average, workers can expect a wage increase of around $2/hour. 3 The board also is obligated to certify worker organizations to inform nursing home workers of their labor rights, and as of February 2026, the AFL-CIO, SEIU Healthcare Minnesota and Iowa, and the American Federation of State, County and Municipal (AFSCME) Council 65 are all certified to provide this training. 4
There have been similar efforts in the fast-food sector. In New York, the State Commissioner of Labor has longstanding statutory authority to convene wage boards to set occupation-specific minimum wage rates. 5 The Commissioner convened such a board in 2015 and adopted its findings, leading to phased increase in the fast-food minimum wage to $15/hour (in New York City by 2018, and outside of New York City by 2021). 6 More recently, California in 2024 raised the minimum wage of fast-food workers to $20/hour, creating a Fast Food Council with the power to determine future wage increases and other employment regulations. 7
“Trigger” Laws
One response to an increasingly moribund NLRB that Democratic states have taken, or are considering, is the passage of so-called “trigger laws.” These laws aim to empower states to enforce rights that are protected under the NLRA by allowing parties to bring charges or petitions that would ordinarily be heard by the NLRB before state agencies. Until recently, it has been widely understood that any attempt by local or state government to directly enforce the NLRA would be invalid due to a judicially created doctrine known as Garmon preemption (coined after the Supreme Court’s 1959 decision in San Diego Building Trades Council v. Garmon). Under Garmon preemption, state and local laws may not regulate activity that is “arguably” protected or prohibited by the NLRA—instead, the NLRB has exclusive jurisdiction to regulate and enforce the act. But, given the NLRB’s incapacity or unwillingness to enforce workers’ federal labor law rights, labor advocates and policymakers are increasingly arguing that Garmon preemption may not be a barrier to state enforcement of labor law, since forcing workers to vindicate their rights before a non-operative agency effectively leaves them with no recourse for labor law violations. This backdrop of dysfunction has provided the “trigger” for these state laws to take effect. 8
In September 2025, both New York and California enacted such laws. Under New York’s legislation, its New York Public Employment Relations Board (PERB) has been authorized to “assert jurisdiction over disputes between employers and recognized employee organizations if the National Labor Relations Board is unable to successfully assert jurisdiction.” 9 California’s trigger law similarly authorizes its PERB to exercise jurisdiction over private-sector labor disputes where the NLRB has “expressly or impliedly ceded jurisdiction.” 10 The statute enumerates particular triggers as to when this may occur, including a lack of quorum on the NLRB, the repeal or narrowing of the NLRA, and when the NLRB takes longer than six months to dismiss or issue complaint on an unfair labor practice charge filed by a worker. 11
Proposed legislation in Massachusetts would provide its Department of Labor Relations and Commonwealth Employment Relations Board the power regulate private-sector collective bargaining in the event that “Federal law cease[s] to preempt” state regulation, along with significantly expanding traditional NLRA remedies by imposing $10,000 fines for violations and awarding triple damages, among other changes. 12 California’s legislation also provides for remedies not currently supplied by the NLRA.
Unsurprisingly, both New York’s and California’s laws have been challenged in court. The Amazon Labor Union (ALU) filed an unfair labor practice charge with the New York PERB against Amazon, to which Amazon responded by filing a lawsuit in federal court arguing that the trigger law was preempted by Garmon. In December 2025, the district court agreed with Amazon that Garmon preemption likely prohibits the trigger law and has enjoined its enforcement pending further proceedings. Later in December, a federal district court in California arrived at a similar conclusion and has blocked enforcement of its trigger bill. It is likely that the Supreme Court will have the last word as to whether trigger laws will ultimately be allowed to take effect.
A Bright Future?
What this overview of recent state and local efforts shows is that despite the doom and gloom about the potential demise of the NLRA, we are living through one of the most fruitful and creative periods in labor law in many decades. Our task is not simply to recreate the protections of the NLRA at the state level, but to approach each effort as part of an overall strategy to build the most pro-worker labor law regime possible. As we know from bitter experience, the opportunity to reshape the rules of organizing and collective action may not come even once a generation. We owe it to the future of the labor movement to get it right.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
