Document Type
Article
Abstract
Throughout the past hundred years, states have enacted laws and constitutional clauses protecting the rights of private sector workers to associate, organize, and collectively bargain with their employers. These laws have remained dormant and relatively inactive because the National Labor Relations Act (NLRA) preempts state and local regulation of private sector labor relations. But now the NLRA is dysfunctional and on the brink of collapse. In lieu of the NLRA, those state laws offer a backstop for worker organizing under state law. This Essay describes those state laws and offers paths for concurrent application alongside a decaying NLRA and an imploding National Labor Relations Board.
NLRA preemption is premised on the capacity to enforce the NLRA and on a baseline acceptance of the law’s application and Constitutional legitimacy. Those baselines for NLRA preemption arguments are now tested as the NLRA loses capacity, scope, and legitimacy. Concretely I suggest that NLRA preemption depends on 1) a functional National Labor Relations Board and 2) limited to employers that do not try to evade the NLRA by misclassifying employees (e.g., student athletes), or by arguing the NLRA is unconstitutional.
By describing existing state private sector labor laws and offering a new view on preemption arguments this Essay contributes to the pressing need to identify paths for collective voice and power in work as employers and their proxies capture and dismantle the federal labor relations framework.
Date of Authorship for this Version
3-28-2025
Keywords
United States. National Labor Relations Act, National Labor Relations Board, Worker organization
Recommended Citation
Racabi, Gali, "In Lieu of the NLRA" (2025). Cornell Law Faculty Working Papers. 158.
https://scholarship.law.cornell.edu/clsops_papers/158