As the National Labor Relations Board (“NLRB”) remains hamstrung by a months-long lack of quorum, the dynamics of U.S. labor relations are shifting in real time. States are moving to fill the void by enacting laws that test the boundaries of federal preemption and reshape the federal framework that traditionally governs labor matters. At the same time, federal courts are beginning to push back on state efforts to intervene in labor matters. Most recently, a California federal court issued an injunction blocking enforcement of the state’s new “captive audience” law, finding it likely preempted by the National Labor Relations Act (“NLRA”) and unconstitutional under the First Amendment. Together, these developments underscore a turbulent period for employers navigating overlapping and sometimes conflicting labor law regimes at both the state and federal levels.

The NLRB Quorum Crisis and State-Level Power Grabs

The NLRB has lacked a quorum since early 2025, leaving it unable to issue decisions in unfair labor practice and union representation cases. As we previously reported here, in response, states such as California, Massachusetts, and New York have attempted to fill the gap by asserting jurisdiction over private-sector labor disputes traditionally in the NLRB’s domain.

California’s AB 288, for example, expands the jurisdiction of the state’s Public Employment Relations Board to cover petitions submitted by private-sector employees, which ordinarily are subject to the exclusive jurisdiction of the NLRB, when the NLRB lacks a quorum or sufficient resources to fulfill its statutory duties.

Unsurprisingly, these efforts have already sparked litigation. The NLRB filed suit to block enforcement of New York’s parallel law, arguing that it is preempted by federal labor statutes. AB 288 is expected to face similar challenges. As cases challenging these laws and similar legislation continue winding through the courts, the requirements remain in effect unless enjoined by a court. 

The Senate’s  Actions to Restore the NLRB’s Quorum

The NLRB is a federal agency in the executive branch, headed by a five-member Board and General Counsel. NLRB Members are nominated by the President and confirmed by the Senate. On October 9, 2025, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted on President Donald Trump’s nominees for key NLRB positions. The Committee approved Crystal Carey, who was nominated in March, as General Counsel and James Murphy, who was nominated in July, to fill one of four vacant Board seats. Their nominations will now head to the Senate for a vote.

President Trump also nominated Scott Mayer for a second vacant Board seat alongside Murphy in July. On October 1, 2025, however, HELP Committee Chairman Bill Cassidy tabled Mayer’s nomination, following a contentious hearing which included contentious exchanges focused on Mayer’s role as Chief Labor Counsel for his current employer during an ongoing strike.

Even if Mr. Murphy is eventually confirmed, the Board will remain short of a quorum. Until at least one additional member is confirmed, giving the Board a total of three members (including current Board Member David Prouty), the NLRB will remain unable to issue rulings, leaving states free to test the limits of their authority in the labor relations arena.

California’s Prohibition of Captive Audience Meetings Hits Roadblock

State laws asserting jurisdiction over private-sector labor disputes are not the first attempt by states to reshape the NLRB’s jurisdiction over labor matters. As we’ve previously reported on here and here, several states have enacted legislation in recent years that restricts employers’ ability to mandate employee attendance at meetings discussing union matters (often referred to as “captive audience” meetings), including California’s SB 399 and New York’s S4982/A6604.

Despite this nationwide momentum, these laws have faced significant legal challenges, with opponents arguing that these laws are preempted by federal labor laws or unconstitutionally restrict employers’ speech. Indeed, the California Chamber of Commerce and other California business groups made these exact arguments to the Eastern District of California district court when challenging California’s SB 399.

In a small win for employers, the district court agreed with the California plaintiffs, issuing a preliminary injunction against the enforcement of SB 399 on September 30, 2025.

              Background on SB 399 and the Broader Trend

SB 399, which took effect January 1, 2025, prohibited California employers from discharging, discriminating against, or otherwise retaliating or taking adverse action against employees who declined to attend mandatory job-related meetings about religious or political themes. The law expressly applies to employer-sponsored meetings, often referred to as “captive audience meetings,” designed to communicate the employer’s position on union representation.

With the passage of SB 399, California joined a growing list of states, including Connecticut, Hawaii, Illinois, Maine, Minnesota, Oregon, Vermont and Washington, that have enacted similar legislation. This state-level trend mirrored a broader federal effort under former NLRB General Counsel Jennifer Abruzzo, who maintained that mandatory group meetings about unionization violate federal labor law. Abruzzo was dismissed as General Counsel for the NLRB by President Trump in January 2025 but the NLRB ruled in November 2024  that captive audience meetings violate the National Labor Relations Act. (That precedent however is expected to change once the NLRB regains a quorum with a majority of Republican appointees.)

Courts and governors in some states, however, have stopped comparable laws from taking effect. For example, a district court in Florida permanently enjoined the enforcement of a similar law, and Colorado’s Governor vetoed a similar bill in 2024.

              The Legal Challenge in California

A month after SB 399 took effect, the California Chamber of Commerce, joined by other employer groups, filed suit against Attorney General Rob Bonta and other state officials, arguing that SB 399 violates the First Amendment and is preempted by the NLRA. The business-group plaintiffs contended that SB 399 unfairly targeted employer speech and interfered with their ability to communicate with employees about unionization and related labor matters.

Agreeing with the plaintiffs, the Court granted a preliminary injunction to halt enforcement of SB 399. The Court found that the law improperly regulates speech based on content and viewpoint and is preempted by the NLRA, which provides a comprehensive framework for labor relations.

Although the injunction offers immediate relief for California employers, it is only preliminary. The litigation will continue as the court considers the case on the merits, and the state may appeal.

Conclusion and Next Steps

The employer-friendly injunction against SB 399 offers California employers temporary reprieve regarding captive-audience meetings amid a period of legal and regulatory flux in the labor arena, but the underlying issues are far from resolved. Other labor-related challenges remain, including the ongoing state encroachment into the NLRB’s domain.

California employers should continue monitoring SB 399 and AB 288, and all employers should stay alert to state-level developments affecting labor matters. The Squire Patton Boggs Labor and Employment team will continue to monitor these developments. Check back here for further updates.