Washington’s “Trigger” Labor Law for Private Employers

Seyfarth Synopsis: The Washington State Legislature has passed Engrossed Substitute House Bill 2471 (“ESHB 2471”).  The measure would establish a state-administered collective bargaining framework for private sector employers, if federal labor law no longer preempts state regulation, or if the National Labor Relations Board (“NLRB”) declines or loses jurisdiction over particular employers or industries. The bill has been delivered to the Governor and is expected to be signed.

ESHB 2471 reflects a broader and accelerating trend among states seeking to fill perceived gaps in federal labor enforcement.  Similar laws enacted in New York and California in 2025 are already the subject of federal litigation, with at least one statute currently enjoined.  These developments underscore the substantial legal uncertainty surrounding the state level “trigger” labor laws. 

Scope and Triggering Events

The law would apply to private sector employers historically subject to NLRB jurisdiction if one of several triggering events occurs. In general terms, ESHB 2471 would become operative if:

• • Federal law ceases to preempt state regulation of private sector labor relations, in whole or in part; or
  • The NLRB determines that it lacks jurisdiction, declines to exercise jurisdiction, or is deprived of jurisdiction over a particular employer, group of employees, trade, or industry.

If triggered, the measure would grant the Washington Public Employment Relations Commission (“PERC”) jurisdiction over labor disputes between private sector employers and labor organizations.  PERC’s jurisdiction has historically been limited to public sector labor relations with only narrow private sector carveouts.

Key Features Employers Should Understand

1. Transfer of Authority to PERC

Once triggered, PERC would assume responsibility for determining appropriate bargaining units, certifying bargaining representatives, adjudicating unfair labor practice allegations, and administering mediation, fact finding, and arbitration procedures.  ESHB 2471 would also grant PERC concurrent jurisdiction with Washington courts to enforce state statutory protections for concerted activity.

2. Expedited Certification and Continuity of Existing Relationships

Where a union was previously certified or voluntarily recognized under the National Labor Relations Act (“NLRA”), ESHB 2471 would allow for prompt certification by PERC, with verification generally required to be completed within one month.  Existing collective bargaining agreements and existing terms and conditions of employment would remain in effect during the transition period.

3. Card Check Certification

ESHB 2471 authorizes PERC to certify a bargaining representative through a review of signed authorization cards.  If more than fifty percent of employees in an appropriate unit have signed authorization cards and no other labor organization seeks to represent the unit, PERC has the authority to certify the union as the exclusive bargaining representative without conducting an election.  The measure also grants PERC authority to “elect” to direct a secret ballot election under appropriate circumstances.

4. Mandatory Interest Arbitration

One of the most consequential features of ESHB 2471 for private sector employers is its mandatory interest arbitration requirement.  If an employer and a certified bargaining representative fail to reach agreement within six months following initial certification of the bargaining unit or within six months following expiration of a collective bargaining agreement, all remaining disputed issues must be submitted to binding interest arbitration unless the parties mutually agree otherwise.  The arbitrator is authorized to impose a complete collective bargaining agreement based on statutory factors that include the employer’s ability to pay, comparability with similar employers, and cost of living considerations.

5. Restrictions on Employer Unilateral Changes

The measure would continue to prohibit employers from making unilateral changes to wages, hours, or other terms and conditions of employment for represented employees.  This restriction would apply both during the term of a collective bargaining agreement and after its expiration.  Notably, alleged unilateral changes would be resolved through arbitration, rather than through traditional unfair labor practice proceedings.

6. Expanded Union-Employee Communications Privilege

ESHB 2471 would extend Washington’s existing union-employee evidentiary privilege to proceedings under the new law.  As a practical matter, this provision may limit discovery into certain union communications and internal deliberations during administrative proceedings before PERC and related court actions.

National Context and Ongoing Litigation

Washington’s enactment of ESHB 2471 follows closely on the heels of similar trigger statutes in other states.

In New York, a 2025 statute authorizes the state labor board to regulate private sector labor relations when the NLRB fails to “successfully assert” jurisdiction.  The NLRB has filed suit against the State of New York, alleging that the law is preempted by the NLRA and unlawfully creates a parallel labor relations regime.  That litigation remains pending.

California enacted a similar law in 2025 granting its Public Employment Relations Board authority over private sector labor matters if the NLRB is unable or unwilling to act.  The NLRB likewise sued the State of California, alleging that the law is preempted by the NLRA.  In late 2025, a federal district court issued a preliminary injunction blocking enforcement of the statute after concluding that the NLRB is likely to succeed on its federal preemption claims.

These cases implicate longstanding Supreme Court doctrines that generally prohibit states from regulating conduct that is protected or prohibited by the NLRA, even when the NLRB is operationally constrained.  The outcome of this litigation will likely shape whether and how Washington’s law can be implemented.

Practical Considerations for Washington Employers

Although ESHB 2471 may never be triggered or may be narrowed through litigation, Washington employers should continue monitoring the bill and ongoing parallel litigation.  It may represent a significant potential shift in the regulation of private sector labor relations in Washington.   

We will continue to monitor developments closely and  are available to discuss how this legislation may affect employer operations in Washington.