On September 5, 2025, Governor Kathy Hochul signed off on a potentially monumental change in New York’s labor law. The amendment to the New York State Labor Relations Act purports to give the New York Public Employment Relations Board (PERB) broad jurisdiction over private employers. As its name suggests, PERB historically focuses on public sector labor relations issues. The National Labor Relations Board (NLRB), a federal agency, governs most private-sector labor relations throughout the country, including New York. Can New York step in and take over this historically federal role?
Read here for more on the scope of NLRB’s jurisdiction.
NYS Labor Relations Act Amendment
The amendment to Labor Law § 715 purports to expand PERB’s jurisdiction to private employers in a novel way. Specifically, the statute now provides that PERB has jurisdiction over private-sector labor relations unless the NLRB “successfully asserts jurisdiction over any employer, employees, trades, or industries pursuant to an order by the federal district court established under article three of the United States constitution.”
If you’re not sure what that means, you’re not alone. The wording appears to be ambiguous in multiple respects. But we do at least know what the NY Legislature wants it to mean.
State Senator Ramos sponsored the legislation in the NY Senate. Her introducer’s memorandum explains the goal: to prevent a gap in labor law enforcement during periods when the NLRB cannot act, such as when the Board lacks a quorum. In other words, “This bill intends to give New York the power to protect employees if the National Labor Relations Board is not fulfilling its duty.”
The amendment took effect immediately upon signing.
Federal Preemption
The NY Legislature knows that this amendment will face preemption challenges. The Sponsor’s memo acknowledges that “[u]nder current law the National Labor Relations Act preempts any attempt to take up these cases at the state level.”
The Supreme Court has long held that the NLRA preempts most state regulation of private-sector labor relations:
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Garmon preemption blocks state action in areas “arguably protected or prohibited” by the NLRA.
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Machinists preemption blocks states from regulating areas Congress intended to leave to the “free play of economic forces.”
The Sponsor’s memo asserts that “The National Labor Relations Act simply remaining in place does not guarantee that the provisions will successfully protect employees.” Thus, the Legislature’s theory seems to be that by amending state law as they have, PERB can assert jurisdiction unless the NLRB stops it from doing so. However, that reasoning still appears to be at odds with established preemption case law.
The Garmon and Machinists preemption doctrines don’t shut off just because the NLRB is not acting. Federal law still governs, even if enforcement is delayed.
There are two narrow exceptions where states can act:
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When the NLRB formally declines jurisdiction over entire categories of employers under NLRA § 14(c)(2) (e.g., very small local businesses).
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When the NLRB cedes jurisdiction to a state agency under NLRA § 10(a).
New York’s amendment doesn’t fit either exception. Instead, it aims directly at the NLRB’s core jurisdiction, effectively daring federal courts to enforce existing preemption standards.
On September 12, 2025, the NLRB sued the State of New York and its PERB seeking to enjoin the enforcement of the amendment. If the NLRB (which is not itself an employer subject to the NYS law) is deemed to lack standing, then private parties may need to take up the litigation fight.
How New York’s State Labor Relations Act Differs from the NLRA
One reason the recent amendment is so consequential is that New York’s own Labor Relations Act is not just a copy of the NLRA. The differences are significant.
Devalues Employer Interests
Most importantly, the New York law is written as a one-sided protection for employees. The NLRA recognizes both employee rights and certain employer rights. The New York state labor relations statute does not include that balancing language. Its focus is on ensuring employees’ right to organize.
Certification procedures under the state law are also potentially more favorable to unions. While the NLRB strongly favors secret-ballot elections, the NY State Labor Relations Act permits certification based on alternative showings of majority support. In practice, that could mean greater reliance on card-check recognition and fewer opportunities for employers to communicate with their employees before a union is installed.
Lacks Relevant Precedent
The NLRA has nearly 90 years of precedent guiding questions like: What is an appropriate bargaining unit? When is an election necessary? What counts as unlawful conduct during a campaign? PERB has far less (essentially zero) precedent in the private-sector setting, and the State Labor Relations Act does not replicate all the more detailed parameters found in federal law. In essence, PERB would be starting from scratch in this area.
Broader Remedies
Finally, remedies under the state law are not identical to those under the NLRA. At the federal level, remedies are historically limited: reinstatement, back pay, and cease-and-desist orders. The New York statute authorizes PERB to fashion remedies for unfair labor practices with little guidance on limits. Without decades of judicial gloss, employers could face new uncertainty about what remedies PERB might impose.
In short, if PERB were to exercise jurisdiction broadly under this amendment, employers would not simply be dealing with the familiar NLRA system transplanted to Albany. They would be operating under a different statute—one that is more protective of employees, less protective of employers, and far less developed in terms of jurisprudence.
What Employers Should Do
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Stay alert to petitions. If a union files at PERB citing the new law, you may need to respond quickly with a preemption defense.
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Know your thresholds. If you are in one of the small categories where the NLRB has formally declined jurisdiction, PERB jurisdiction is nothing new—it already applied.
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Prepare for litigation. Expect forum fights. Legal battles are inevitable—effectively invited by the amendment. The question is which employers will be the ones stuck in the crosshairs and forced to take up the fight.
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