Key Point:
- California’s AB 288, effective January 1, 2026, lets private-sector workers take an unfair labor practice case to the state’s Public Employment Relations Board (PERB) when the NLRB fails to act within six months.
- PERB can order the same remedies the NLRB would, including reinstatement, back pay, and orders to bargain in good faith, but not punitive damages.
- AB 288 faces a federal legal challenge, but it is currently in effect and PERB is accepting petitions. Filing now preserves your rights and gets your case into the system
You filed an unfair labor practice charge with the National Labor Relations Board six months ago. Your employer retaliated against you for organizing your coworkers, and the NLRB was supposed to investigate. But your case has gone nowhere. No one has returned your calls. No complaint has been issued. Your employer continues to violate the law, and the federal agency tasked with protecting your rights is effectively unavailable.
This is the reality for thousands of private-sector workers across the country. The NLRB has been hobbled by quorum issues, budget cuts, staffing shortages, and a federal court ruling that gave the president the power to remove board members at will. For workers waiting on the federal board to act, the delay is not just frustrating. It is a denial of justice.
California’s response was AB 288, which took effect on January 1, 2026. Under this law, when the NLRB fails to act on a California labor board complaint within six months, private-sector workers can now take their case to the California Public Employment Relations Board (PERB) instead. This is an unprecedented state-level backstop, and while its future is uncertain due to a federal legal challenge, it represents California’s most aggressive effort yet to protect workers’ organizing rights.
Here is what AB 288 does, how it works, and what you need to know before filing a California labor board complaint with PERB.
What Is AB 288 and Why Does It Matter?
AB 288 created a new pathway for private-sector California workers to pursue unfair labor practice claims when the federal NLRB has not acted within a reasonable time.
Before AB 288, private-sector labor relations were considered exclusively federal territory under the National Labor Relations Act (NLRA). If your employer fired you for organizing, interfered with a union election, or retaliated against you for collective activity, the NLRB was your only option. State agencies had no jurisdiction over private-sector labor disputes.
AB 288 changes that by allowing PERB to step in when the NLRB has failed to act on a California labor board complaint within six months of filing. Once that six-month window passes without NLRB action, the worker can petition PERB to take jurisdiction.
Under AB 288, PERB can investigate unfair labor practice charges, issue complaints, hold hearings, certify union elections, and order remedies, including reinstatement, back pay, and injunctive relief. Essentially, PERB can do for private-sector workers what the NLRB is supposed to do but currently cannot.
This matters because the protections of the NLRA are meaningless if the agency responsible for enforcing them is nonfunctional. AB 288 ensures that California workers do not lose their rights simply because a federal agency has been weakened.
Why the NLRB Backstop Is Needed Right Now
The NLRB has faced an unprecedented period of instability. In 2025, the D.C. The Circuit Court of Appeals ruled that the president can remove NLRB members at will, upending decades of precedent that had protected the board’s independence. This ruling, combined with political turnover, has left the NLRB with recurring quorum issues that prevent it from deciding cases.
The board’s budget has been cut, regional offices have been closed or understaffed, and the backlog of open cases has grown dramatically. For workers who filed a California labor board complaint or an unfair labor practice charge with the NLRB, the practical result is that their case may sit for months or years without action.
During this period, employers benefit from the delay. A worker who was fired for organizing does not get their job back. A union election that was tainted by employer interference does not get rerun. The longer the NLRB takes, the more the employer’s unlawful conduct becomes a fait accompli.
AB 288 was California’s direct response to this crisis. The state legislature determined that waiting for the federal government to fix the NLRB was not an option while workers’ rights were being violated in real time.
How PERB Works for Private-Sector Workers Under AB 288
If you are a private-sector worker in California and your NLRB charge has been pending for six months without action, here is how to file a California labor board complaint with PERB under AB 288.
Step 1: Confirm your NLRB charge has been pending for six months. The six-month clock starts from the date your charge was filed with the NLRB. You will need documentation showing your original filing date and evidence that the NLRB has not issued a complaint, dismissed the charge, or taken other substantive action.
Step 2: File a petition with PERB. You can file a petition asking PERB to assume jurisdiction over your case. PERB has published forms and guidelines for AB 288 filings on its website. The petition should include a copy of your original NLRB charge, documentation of the filing date, and a statement that the NLRB has not acted within six months.
Step 3: PERB investigates and decides. Once PERB accepts jurisdiction, it functions as the adjudicatory body for your case. PERB investigators will review the charge, gather evidence, and determine whether to issue a complaint. If a complaint is issued, the case proceeds to a hearing before a PERB administrative law judge.
Types of relief PERB can order include reinstatement of a wrongfully terminated employee, back pay with interest, cease-and-desist orders against the employer, certification of union election results, and orders requiring the employer to bargain in good faith.
PERB cannot award punitive damages or handle cases that fall outside the scope of the NLRA. Its jurisdiction under AB 288 is limited to unfair labor practice charges and representation matters that would otherwise be handled by the NLRB.
The process of filing a California labor board complaint with PERB is similar in structure to the NLRB process, but PERB has a track record of resolving cases more efficiently than the current federal board.
The Legal Challenge: Will AB 288 Survive?
It would not be responsible to discuss AB 288 without addressing the significant legal uncertainty surrounding it.
In October 2025, the NLRB filed a lawsuit against the State of California, arguing that AB 288 violates the Supremacy Clause of the U.S. Constitution by allowing a state agency to exercise jurisdiction over matters preempted by federal law. The NLRB’s position is that the NLRA gives the federal board exclusive authority over private-sector labor relations and that a state cannot step into that role even when the NLRB is failing to act.
A preliminary injunction hearing is pending in federal court. If the court grants the injunction, PERB’s ability to accept new AB 288 cases could be paused while the lawsuit proceeds. If the court denies the injunction, PERB will continue accepting and processing cases.
California’s defense rests on the argument that when the federal government fails to enforce federal law, the state has a legitimate interest in filling the gap to protect its own workers. This is a novel legal theory, and the outcome is uncertain.
What does this mean for you? If you have a pending California labor board complaint and the NLRB has not acted, AB 288 is currently the law, and PERB is currently accepting petitions. Filing now preserves your rights and gets your case into the system. If the law is ultimately struck down, your case reverts to the NLRB. If it survives, you are ahead of the line.
An employment attorney can help you assess whether filing with PERB now is the right strategic decision for your specific situation.
Frequently Asked Questions About Filing a California Labor Board Complaint Under AB 288
Can I file with both PERB and the NLRB?
You must first file with the NLRB. AB 288 only allows PERB to take jurisdiction after the NLRB has failed to act within six months. You do not need to withdraw your NLRB charge to petition PERB. If the NLRB subsequently acts on your charge, the two agencies will coordinate to avoid duplication.
What types of claims can PERB hear under AB 288?
PERB can hear unfair labor practice charges that would otherwise fall under the NLRA. This includes employer interference with organizing, retaliation for union activity, refusal to bargain in good faith, and discrimination based on union membership or activity. It also covers representation matters such as union certification elections.
Does AB 288 apply to non-union workers?
Yes. The NLRA protects all workers’ rights to engage in “concerted activity,” which includes discussing wages and working conditions with coworkers, organizing a union, and taking collective action. You do not need to be a union member to file a California labor board complaint. If your employer fired you or retaliated against you for engaging in protected concerted activity, AB 288 applies.
What if I am fired for trying to organize my workplace?
Firing an employee for organizing activity is an unfair labor practice under the NLRA. If you have filed a charge with the NLRB and the board has not acted within six months, you can petition PERB under AB 288. PERB can order reinstatement and back pay. You may also have a separate state-law claim for wrongful termination that can be pursued independently.
Is AB 288 still in effect, given the federal lawsuit?
As of the date of this post, yes. AB 288 is the current California law, and PERB is accepting petitions. The NLRB’s legal challenge is pending, but no injunction has been issued. If the law is enjoined or struck down, cases filed with PERB would revert to the NLRB.
Protecting Your Right to Organize
The right to organize, bargain collectively, and take concerted action is one of the most fundamental protections in American labor law. When the federal agency responsible for enforcing those rights cannot do its job, California stepped in with AB 288.
At Bibiyan Law Group, we represent employees who have been retaliated against for exercising their workplace rights. Whether your California labor board complaint is stuck at the NLRB or you are facing retaliation for collective action, our attorneys can evaluate your options and help you find the right path forward.
Contact Bibiyan Law Group for a free consultation. We fight for workers. No upfront fees.
Disclaimer: This is for informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. Legal results are not guaranteed and vary by case. Bibiyan Law Group P.C. also operates as Tomorrow Law.