In today’s news and commentary, three states propose legislation challenging Garmon preemption; the Wisconsin state legislature passes a bill establishing portable benefits for gig workers; and unauthorized immigrants are increasingly afraid to show up to work due to increased ICE raid activity.

The 1959 U.S. Supreme Court case San Diego Building Trades Council v. Garmon held that the National Labor Relations Act preempts state and local labor laws, and granted the National Labor Relations Board (“NLRB” or “the Board”) exclusive jurisdiction over labor disputes. But recently, three states have called into question the validity of Garmon preemption when the Board lacks the quorum necessary to fully function. In response to President Trump’s firing of Board member Gwynne Wilcox, New York, California, and Massachusetts have all proposed bills that would grant those states jurisdiction over private labor disputes in the absence of Board quorum. A wave of litigation is expected to ensue if the proposed bills become laws, with challengers arguing that Garmon preemption still controls. Ben’s post, laying out the argument that Garmon preemption may be suspended, was cited in the California legislative history. NYU law professor Samuel Estreicher has raised skepticism over the effectiveness of these state proposals, arguing that determining when federal preemption ceases is not a workable inquiry due to the various reasons the Board could lack quorum.

Yesterday, the Wisconsin state legislature passed a bill granting portable benefits to gig workers. If signed into law, the legislation would give eligible app-based drivers a portable benefits account in which a network company may contribute an amount equal to 4% of a driver’s quarterly earnings so that a driver may: receive a distribution to compensate for lost income due to illness, birth of a child, or an event that occurred through no fault of the driver; add to an individual retirement account; and pay health insurance premiums. The bill retains an independent contractor classification for most gig workers, specifying that in order for an app-based driver to be classified as an employee of a network company, the company must meet all four criteria: 1) set dates, times, or a minimum number of hours during which the driver must be logged onto the company’s app or software; 2) terminate the contract of the driver for rejecting a ride or delivery request; 3) restrict the driver from performing services through other network companies; and 4) restrict the driver from working any other job.

Many unauthorized immigrants increasingly afraid of U.S. Immigration and Customs Enforcement (“ICE”) raids have stopped showing up to their workplaces. The Los Angeles garment district is noticeably quieter and farm owners express difficulty in finding enough workers to grow and harvest crops. The Department of Agriculture estimates that over 40% of farm laborers are undocumented. Unauthorized immigrants comprise about 5% of the U.S. workforce, with especially high density in industries such as food processing, construction, and other areas prone to labor shortages. This month ICE reported an average of 1,600 daily apprehensions — an approximately 450% increase from President Biden’s final year in office.