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California's labor landscape is changing with the passage of Assembly Bill (AB) 288, which expands both worker rights and the authority of the state's Public Employment Relations Board (PERB). Employers should be aware of these changes, as they may impact workplace policies, union interactions, and the handling of labor disputes.
PERB is a state agency that has traditionally overseen labor relations for public sector employees in California. The agency is viewed as very pro-employee, and more so than the National Labor Relations Board (NLRB), which is its federal counterpart. PERB administers and enforces laws related to collective bargaining and unfair labor practices for public employees, such as teachers and state workers. With AB 288, PERB's authority is now extended to certain private-sector workers under specific circumstances.
Expanded Worker Rights
AB 288 reaffirms and broadens California workers' rights to organize, join, and support labor organizations, and to engage in collective bargaining. These rights are now explicitly protected under state law, and the law requires that any restrictions must serve a compelling state interest and use the least restrictive means possible.
Employers should be even more cautious about actions or policies that could be seen as interfering with employees' rights to organize or bargain collectively.
PERB's New Role in the Private Sector
Historically, private-sector labor relations have been governed by federal law and the NLRB. AB 288 changes this by empowering PERB to step in and enforce labor rights for private-sector workers in California when federal protections are unavailable or ineffective. This is a significant expansion of PERB's authority and is consistent with other legislation around the country, such as New York.
PERB can now:
- Process union representation petitions and certify exclusive bargaining representatives.
- Investigate and decide unfair labor practice charges.
- Order remedies, including requiring employers to bargain, submit to binding, or comply with other orders.
- Impose civil penalties for patterns or practices of unfair labor practices.
- Maintain confidentiality of sensitive documentation and evidence.
PERB is directed to interpret the law in a way that most expansively protects worker rights, and while it may consider federal precedents, it is not bound by them.
PERB's new authority is not automatic but triggered by specific circumstances, including:
- If federal protections under the National Labor Relations Act (NLRA) are repealed, narrowed, or enforcement is blocked, and the worker is not covered by other labor laws.
- If the NLRB is unable or unwilling to act, such as:
- Lack of a functioning NLRB quorum.
- Significant delays in processing cases
- Failure to act on union certification or unfair labor practice complaints within specified timeframes.
Once PERB jurisdiction is triggered, it retains authority over the matter unless a court orders otherwise. The law also sets out expedited timelines for certain types of cases, such as those involving refusal to bargain or active organizing campaigns.
A similar law was recently passed by the State of New York and is being challenged by the NLRB on preemption grounds. It is likely the NLRB will also challenge AB 288 on preemption as well.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
