This article is part Cafe TPMTPM's home for opinion and news analysis.
For nine decades, National Labor Relations Board The NLRB serves as the federal government's primary guarantor of workers' rights to organize and bargain collectively. Created at the height of the Great Depression, the NLRB was intended to serve as a buffer between workers and the concentrated economic power of employers, ensuring that the fundamental right to unionize could not be suppressed by intimidation or retaliation. Its enabling legislation, National Labor Relations Act (NLRA), has a clear purpose: to promote and protect collective bargaining and level the playing field between employers and employees.
And yet, in one of the most stunning ironies of recent years, under the Trump administration, the NLRB itself suestates like California and New York, which have asserted their right to protect their workers when the NLRB fails to do its job.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
California AB 5for example, sought to address the problem of systematic misclassification of workers as independent contractors—an issue that the NLRB has done little to address. New York creates new legal protections wage thefta crisis affecting hundreds of thousands of low-income workers. Both states acted because workers were outside the control of the NLRB, which had abdicated its responsibilities.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
The Supreme Court has long recognized that states serve as “laboratories of democracy.” Nowhere is this more important than in labor law, where federal enforcement is chronically underfunded and increasingly politicized. States are often the first to identify emerging problems, from wage theft and workplace safety violations to misclassification in the gig economy, and they are often the first to develop innovative responses.
California AB 5for example, sought to address the problem of systematic misclassification of workers as independent contractors—an issue that the NLRB has done little to address. New York creates new legal protections wage thefta crisis affecting hundreds of thousands of low-income workers. Both states acted because workers were outside the control of the NLRB, which had abdicated its responsibilities.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
Trump's Council theory of preemption effectively weaponizes federal government inaction. Under this view, a hostile or dysfunctional NLRB could unilaterally shut down federal labor laws while preventing states from taking action to ensure that workers have no substantive rights at all. This creates a regulatory vacuum in which employers are not held accountable at either the state or federal level.
The Supreme Court has long recognized that states serve as “laboratories of democracy.” Nowhere is this more important than in labor law, where federal enforcement is chronically underfunded and increasingly politicized. States are often the first to identify emerging problems, from wage theft and workplace safety violations to misclassification in the gig economy, and they are often the first to develop innovative responses.
California AB 5for example, sought to address the problem of systematic misclassification of workers as independent contractors—an issue that the NLRB has done little to address. New York creates new legal protections wage thefta crisis affecting hundreds of thousands of low-income workers. Both states acted because workers were outside the control of the NLRB, which had abdicated its responsibilities.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
This is contrary to both the spirit and letter of the NLRA. Congress explicitly stated that the purpose of the Act was to promote collective bargaining and minimize industrial unrest by empowering workers. There is nothing in the law to suggest that Congress intended the federal government to block states from acting when the NLRB is unable—or unwilling—to carry out its mission.
Trump's Council theory of preemption effectively weaponizes federal government inaction. Under this view, a hostile or dysfunctional NLRB could unilaterally shut down federal labor laws while preventing states from taking action to ensure that workers have no substantive rights at all. This creates a regulatory vacuum in which employers are not held accountable at either the state or federal level.
The Supreme Court has long recognized that states serve as “laboratories of democracy.” Nowhere is this more important than in labor law, where federal enforcement is chronically underfunded and increasingly politicized. States are often the first to identify emerging problems, from wage theft and workplace safety violations to misclassification in the gig economy, and they are often the first to develop innovative responses.
California AB 5for example, sought to address the problem of systematic misclassification of workers as independent contractors—an issue that the NLRB has done little to address. New York creates new legal protections wage thefta crisis affecting hundreds of thousands of low-income workers. Both states acted because workers were outside the control of the NLRB, which had abdicated its responsibilities.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
This is not a legal formality. Normally, preemption prevents duplication of regulation, but in this case, Trump's NLRB statement is both radical and deeply cynical. They say states cannot protect workers in areas that may fall under the NLRB's jurisdiction, even if the NLRB refuses to exercise that jurisdiction. In other words, the NLRB claims exclusive discretion not to protect workers.
This is contrary to both the spirit and letter of the NLRA. Congress explicitly stated that the purpose of the Act was to promote collective bargaining and minimize industrial unrest by empowering workers. There is nothing in the law to suggest that Congress intended the federal government to block states from acting when the NLRB is unable—or unwilling—to carry out its mission.
Trump's Council theory of preemption effectively weaponizes federal government inaction. Under this view, a hostile or dysfunctional NLRB could unilaterally shut down federal labor laws while preventing states from taking action to ensure that workers have no substantive rights at all. This creates a regulatory vacuum in which employers are not held accountable at either the state or federal level.
The Supreme Court has long recognized that states serve as “laboratories of democracy.” Nowhere is this more important than in labor law, where federal enforcement is chronically underfunded and increasingly politicized. States are often the first to identify emerging problems, from wage theft and workplace safety violations to misclassification in the gig economy, and they are often the first to develop innovative responses.
California AB 5for example, sought to address the problem of systematic misclassification of workers as independent contractors—an issue that the NLRB has done little to address. New York creates new legal protections wage thefta crisis affecting hundreds of thousands of low-income workers. Both states acted because workers were outside the control of the NLRB, which had abdicated its responsibilities.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
According to the US Constitution Clause of SupremacyFederal law is the “supreme law of the land.” The Supreme Court has interpreted this provision to mean that when Congress expressly or impliedly intends to create a uniform regulatory scheme in which state-level rules may create conflicting requirements, the federal law supersedes the state law and renders it unenforceable.
This is not a legal formality. Normally, preemption prevents duplication of regulation, but in this case, Trump's NLRB statement is both radical and deeply cynical. They say states cannot protect workers in areas that may fall under the NLRB's jurisdiction, even if the NLRB refuses to exercise that jurisdiction. In other words, the NLRB claims exclusive discretion not to protect workers.
This is contrary to both the spirit and letter of the NLRA. Congress explicitly stated that the purpose of the Act was to promote collective bargaining and minimize industrial unrest by empowering workers. There is nothing in the law to suggest that Congress intended the federal government to block states from acting when the NLRB is unable—or unwilling—to carry out its mission.
Trump's Council theory of preemption effectively weaponizes federal government inaction. Under this view, a hostile or dysfunctional NLRB could unilaterally shut down federal labor laws while preventing states from taking action to ensure that workers have no substantive rights at all. This creates a regulatory vacuum in which employers are not held accountable at either the state or federal level.
The Supreme Court has long recognized that states serve as “laboratories of democracy.” Nowhere is this more important than in labor law, where federal enforcement is chronically underfunded and increasingly politicized. States are often the first to identify emerging problems, from wage theft and workplace safety violations to misclassification in the gig economy, and they are often the first to develop innovative responses.
California AB 5for example, sought to address the problem of systematic misclassification of workers as independent contractors—an issue that the NLRB has done little to address. New York creates new legal protections wage thefta crisis affecting hundreds of thousands of low-income workers. Both states acted because workers were outside the control of the NLRB, which had abdicated its responsibilities.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
These efforts were not attempts to circumvent federal authority—they were attempts to preserve the NORA's core guarantees in the face of federal withdrawal. However, while Trump's NLRB has failed to do its actual job of protecting workers, it has taken the time to make sure states don't either. Acting General Counsel William Cowan filed lawsuits against New York and California seeking to invalidate their NLRB trigger laws under the federal preemption doctrine.
According to the US Constitution Clause of SupremacyFederal law is the “supreme law of the land.” The Supreme Court has interpreted this provision to mean that when Congress expressly or impliedly intends to create a uniform regulatory scheme in which state-level rules may create conflicting requirements, the federal law supersedes the state law and renders it unenforceable.
This is not a legal formality. Normally, preemption prevents duplication of regulation, but in this case, Trump's NLRB statement is both radical and deeply cynical. They say states cannot protect workers in areas that may fall under the NLRB's jurisdiction, even if the NLRB refuses to exercise that jurisdiction. In other words, the NLRB claims exclusive discretion not to protect workers.
This is contrary to both the spirit and letter of the NLRA. Congress explicitly stated that the purpose of the Act was to promote collective bargaining and minimize industrial unrest by empowering workers. There is nothing in the law to suggest that Congress intended the federal government to block states from acting when the NLRB is unable—or unwilling—to carry out its mission.
Trump's Council theory of preemption effectively weaponizes federal government inaction. Under this view, a hostile or dysfunctional NLRB could unilaterally shut down federal labor laws while preventing states from taking action to ensure that workers have no substantive rights at all. This creates a regulatory vacuum in which employers are not held accountable at either the state or federal level.
The Supreme Court has long recognized that states serve as “laboratories of democracy.” Nowhere is this more important than in labor law, where federal enforcement is chronically underfunded and increasingly politicized. States are often the first to identify emerging problems, from wage theft and workplace safety violations to misclassification in the gig economy, and they are often the first to develop innovative responses.
California AB 5for example, sought to address the problem of systematic misclassification of workers as independent contractors—an issue that the NLRB has done little to address. New York creates new legal protections wage thefta crisis affecting hundreds of thousands of low-income workers. Both states acted because workers were outside the control of the NLRB, which had abdicated its responsibilities.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
Underfunded, understaffed and with an ideologically hostile NBRB that cannot enforce the law, some states have fallen into a hole. After Wilcox was fired, New York And California passed so-called “NLRB trigger laws” to allow state labor agencies to monitor union elections, investigate allegations of workplace harassment and address other issues if the federal labor board fails to rule on a case.
These efforts were not attempts to circumvent federal authority—they were attempts to preserve the NORA's core guarantees in the face of federal withdrawal. However, while Trump's NLRB has failed to do its actual job of protecting workers, it has taken the time to make sure states don't either. Acting General Counsel William Cowan filed lawsuits against New York and California seeking to invalidate their NLRB trigger laws under the federal preemption doctrine.
According to the US Constitution Clause of SupremacyFederal law is the “supreme law of the land.” The Supreme Court has interpreted this provision to mean that when Congress expressly or impliedly intends to create a uniform regulatory scheme in which state-level rules may create conflicting requirements, the federal law supersedes the state law and renders it unenforceable.
This is not a legal formality. Normally, preemption prevents duplication of regulation, but in this case, Trump's NLRB statement is both radical and deeply cynical. They say states cannot protect workers in areas that may fall under the NLRB's jurisdiction, even if the NLRB refuses to exercise that jurisdiction. In other words, the NLRB claims exclusive discretion not to protect workers.
This is contrary to both the spirit and letter of the NLRA. Congress explicitly stated that the purpose of the Act was to promote collective bargaining and minimize industrial unrest by empowering workers. There is nothing in the law to suggest that Congress intended the federal government to block states from acting when the NLRB is unable—or unwilling—to carry out its mission.
Trump's Council theory of preemption effectively weaponizes federal government inaction. Under this view, a hostile or dysfunctional NLRB could unilaterally shut down federal labor laws while preventing states from taking action to ensure that workers have no substantive rights at all. This creates a regulatory vacuum in which employers are not held accountable at either the state or federal level.
The Supreme Court has long recognized that states serve as “laboratories of democracy.” Nowhere is this more important than in labor law, where federal enforcement is chronically underfunded and increasingly politicized. States are often the first to identify emerging problems, from wage theft and workplace safety violations to misclassification in the gig economy, and they are often the first to develop innovative responses.
California AB 5for example, sought to address the problem of systematic misclassification of workers as independent contractors—an issue that the NLRB has done little to address. New York creates new legal protections wage thefta crisis affecting hundreds of thousands of low-income workers. Both states acted because workers were outside the control of the NLRB, which had abdicated its responsibilities.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
How did it come to this? Almost immediately after taking office, President Trump illegally board member Gwynne Wilcox fired — for the first time in the 90 years of the council’s existence, the president removed a member of the board of directors before the expiration of the term established by law. Wilcox's removal left the board. without the required quorum at least three members to promote a specific business. In the absence of a quorum, the General Counsel of the NBRB may continue certain activities related to the consideration of complaints and the conduct of ongoing court cases. However, rather than using the Board's full powers to protect workers, Trump's quorum-less NLRB suspended all active investigations, including 24 investigations into megadonor Trump. Elon Musk's companies — and cannot open new investigations when employers violate the rights of their workers.
Underfunded, understaffed and with an ideologically hostile NBRB that cannot enforce the law, some states have fallen into a hole. After Wilcox was fired, New York And California passed so-called “NLRB trigger laws” to allow state labor agencies to monitor union elections, investigate allegations of workplace harassment and address other issues if the federal labor board fails to rule on a case.
These efforts were not attempts to circumvent federal authority—they were attempts to preserve the NORA's core guarantees in the face of federal withdrawal. However, while Trump's NLRB has failed to do its actual job of protecting workers, it has taken the time to make sure states don't either. Acting General Counsel William Cowan filed lawsuits against New York and California seeking to invalidate their NLRB trigger laws under the federal preemption doctrine.
According to the US Constitution Clause of SupremacyFederal law is the “supreme law of the land.” The Supreme Court has interpreted this provision to mean that when Congress expressly or impliedly intends to create a uniform regulatory scheme in which state-level rules may create conflicting requirements, the federal law supersedes the state law and renders it unenforceable.
This is not a legal formality. Normally, preemption prevents duplication of regulation, but in this case, Trump's NLRB statement is both radical and deeply cynical. They say states cannot protect workers in areas that may fall under the NLRB's jurisdiction, even if the NLRB refuses to exercise that jurisdiction. In other words, the NLRB claims exclusive discretion not to protect workers.
This is contrary to both the spirit and letter of the NLRA. Congress explicitly stated that the purpose of the Act was to promote collective bargaining and minimize industrial unrest by empowering workers. There is nothing in the law to suggest that Congress intended the federal government to block states from acting when the NLRB is unable—or unwilling—to carry out its mission.
Trump's Council theory of preemption effectively weaponizes federal government inaction. Under this view, a hostile or dysfunctional NLRB could unilaterally shut down federal labor laws while preventing states from taking action to ensure that workers have no substantive rights at all. This creates a regulatory vacuum in which employers are not held accountable at either the state or federal level.
The Supreme Court has long recognized that states serve as “laboratories of democracy.” Nowhere is this more important than in labor law, where federal enforcement is chronically underfunded and increasingly politicized. States are often the first to identify emerging problems, from wage theft and workplace safety violations to misclassification in the gig economy, and they are often the first to develop innovative responses.
California AB 5for example, sought to address the problem of systematic misclassification of workers as independent contractors—an issue that the NLRB has done little to address. New York creates new legal protections wage thefta crisis affecting hundreds of thousands of low-income workers. Both states acted because workers were outside the control of the NLRB, which had abdicated its responsibilities.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
How did it come to this? Almost immediately after taking office, President Trump illegally board member Gwynne Wilcox fired — for the first time in the 90 years of the council’s existence, the president removed a member of the board of directors before the expiration of the term established by law. Wilcox's removal left the board. without the required quorum at least three members to promote a specific business. In the absence of a quorum, the General Counsel of the NBRB may continue certain activities related to the consideration of complaints and the conduct of ongoing court cases. However, rather than using the Board's full powers to protect workers, Trump's quorum-less NLRB suspended all active investigations, including 24 investigations into megadonor Trump. Elon Musk's companies — and cannot open new investigations when employers violate the rights of their workers.
Underfunded, understaffed and with an ideologically hostile NBRB that cannot enforce the law, some states have fallen into a hole. After Wilcox was fired, New York And California passed so-called “NLRB trigger laws” to allow state labor agencies to monitor union elections, investigate allegations of workplace harassment and address other issues if the federal labor board fails to rule on a case.
These efforts were not attempts to circumvent federal authority—they were attempts to preserve the NORA's core guarantees in the face of federal withdrawal. However, while Trump's NLRB has failed to do its actual job of protecting workers, it has taken the time to make sure states don't either. Acting General Counsel William Cowan filed lawsuits against New York and California seeking to invalidate their NLRB trigger laws under the federal preemption doctrine.
According to the US Constitution Clause of SupremacyFederal law is the “supreme law of the land.” The Supreme Court has interpreted this provision to mean that when Congress expressly or impliedly intends to create a uniform regulatory scheme in which state-level rules may create conflicting requirements, the federal law supersedes the state law and renders it unenforceable.
This is not a legal formality. Normally, preemption prevents duplication of regulation, but in this case, Trump's NLRB statement is both radical and deeply cynical. They say states cannot protect workers in areas that may fall under the NLRB's jurisdiction, even if the NLRB refuses to exercise that jurisdiction. In other words, the NLRB claims exclusive discretion not to protect workers.
This is contrary to both the spirit and letter of the NLRA. Congress explicitly stated that the purpose of the Act was to promote collective bargaining and minimize industrial unrest by empowering workers. There is nothing in the law to suggest that Congress intended the federal government to block states from acting when the NLRB is unable—or unwilling—to carry out its mission.
Trump's Council theory of preemption effectively weaponizes federal government inaction. Under this view, a hostile or dysfunctional NLRB could unilaterally shut down federal labor laws while preventing states from taking action to ensure that workers have no substantive rights at all. This creates a regulatory vacuum in which employers are not held accountable at either the state or federal level.
The Supreme Court has long recognized that states serve as “laboratories of democracy.” Nowhere is this more important than in labor law, where federal enforcement is chronically underfunded and increasingly politicized. States are often the first to identify emerging problems, from wage theft and workplace safety violations to misclassification in the gig economy, and they are often the first to develop innovative responses.
California AB 5for example, sought to address the problem of systematic misclassification of workers as independent contractors—an issue that the NLRB has done little to address. New York creates new legal protections wage thefta crisis affecting hundreds of thousands of low-income workers. Both states acted because workers were outside the control of the NLRB, which had abdicated its responsibilities.
Trump's NLRB lawsuits criticize these efforts not because they violate federal law, but because they succeed where the federal government deliberately sided with corporations over workers. What makes these lawsuits particularly troubling is the contradiction between the NBRB's position and its statutory mission. The NLRA was not created to create a single, exclusive federal bureaucracy; it was written to empower workers. The Council's role has always been to support workers' rights.
Trump's NLRB approach turns that logic on its head. He views the NLRA as a ceiling rather than a floor, arguing that workers should have only those protections that the Board recognizes on any given day. And under an administration that openly supports corporate interests, that ceiling has been set dangerously low. As a result, the agency uses the very powers intended to protect workers to prevent anyone else from protecting them.
If the NLRB succeeds in asserting exclusive authority to deny protections, workers in hostile or underfunded jurisdictions could find themselves without meaningful rights for years to come. Any change in administration could lead to dramatic changes in worker protections, leaving millions of workers in legal limbo. More broadly, the NLRB's position undermines the basic logic of cooperative federalism. States have always played a vital role in protecting their citizens when federal institutions have failed. Preventing them from doing so undermines the sustainability of the entire labor rights ecosystem.
At stake is not only the future of labor innovation at the state level, but also the future of the NLRA itself. If the anti-worker NLRB can interpret the law as a tool to eliminate protections rather than expand them, then the pro-worker basis of the Act will be undermined.
Governments will continue to innovate because they must. Workers cannot wait until the NLRB has quorum, resources and, under certain administrations, meets its own goals. The solution is not to limit staffing, but to return the NLRB to its original mission: to protect workers, not to hinder their protection.
