What happens when the law that’s supposed to protect workers... stops working?
For decades, American workers have depended on the National Labor Relations Act (NLRA) to secure their rights to organize and bargain collectively. But today, the NLRA is in crisis, undermined by external constitutional attacks and hollowed out by internal dysfunction at the National Labor Relations Board (NLRB).
In my recent working paper, In Lieu of the NLRA, I argue that there is a surprising and underappreciated source of hope: state private-sector labor laws that have long been dormant. As the federal framework collapses, these state laws offer a vital path forward for workers seeking to build collective power.
Here are three key takeaways I hope will spark interest, reflection, and action.
1. Private Sector State Labor Laws Already Exist
Contrary to popular belief, the collapse of the NLRA would not leave workers entirely unprotected. Nineteen states already have private-sector labor laws. These “mini Wagner Acts,” protect workers’ rights to organize, bargain, and even strike.
Alabama, Colorado, Connecticut, Hawaii, Kansas, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wisconsin have statutes that mirror many elements of the NLRA, providing legal frameworks for unionization and collective bargaining.
In other words, the legal infrastructure for collective action already exists in many places. We don’t have to invent it from scratch; we have to develop strategies to utilize it and strengthen its capacities with personnel and budgets.
These already-existing laws have been under-utilized much because of NLRA preemption — that is, the judicially created rule that states may not regulate either where federal law currently governs or where federal law intended to leave unregulated. But these state laws are readily available for the many workers excluded from the NLRA and can provide a benchmark for workers' actions in the case of weakening or disappearing preemption.
Figure 1. States with Private Sector State Labor Law
2. NLRA Preemption Is Vulnerable, and Workers Can Act
A major obstacle to state regulation of labor relations has long been federal preemption. However, preemption depends on a functioning federal system. Some scholars, including Ben Sachs from Harvard, argue that the rationale for preemption collapses when the NLRB lacks a quorum. Labor advocates can push such arguments even further, arguing that shutting down the NLRB’s regional offices or otherwise making the NLRB incapable of enforcement weakens preemption arguments.
Without an active federal agency protecting workers’ rights, states have room to step in. Legal doctrine, as well as common sense, supports this view: if the federal government abandons its regulatory role, it cannot simultaneously prohibit states from stepping into the void.
This moment of federal crisis creates a critical opportunity for worker advocates to use state laws more aggressively in the face of federal failure.
3. Employers Can’t Have It Both Ways
Finally, I propose a “Catch-22” argument: employers who attack the NLRA can’t also rely on its preemption shield.
Some employers, like universities arguing student athletes are not “employees” under the NLRA, or companies challenging the constitutionality of the NLRA itself, are actively undermining the federal framework. However, if they claim the NLRA doesn’t apply to their workers, they also should lose the ability to invoke federal preemption to block state regulation.
In short, if employers reject the NLRA, they open the door to state labor law. Workers and advocates should use this leverage when pushing for local protection of workers.
The Future Is State and Local Law
The decay of the NLRA is a profound crisis for American labor, but it is also an invitation.
In lieu of the NLRA, states and localities can become the laboratories of labor democracy once again. We have a rare opportunity to rethink and rebuild collective rights from the ground up, tailored to today’s fragmented economy, diverse workforce, and urgent need for collective solutions.
But this will not happen automatically. It will require legal creativity, grassroots organizing, and political courage.
