by Erin Kiernat
Receiving a little more than 58% of the votes cast at the November 2022 general election, Illinois voters approved an amendment to the Illinois Constitution known as the Workers’ Rights Amendment. The Amendment holds that:
Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and workplace safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.
What will the impact of the Amendment be on employers and employees in Illinois? As of now, no one knows for sure. Illinoisans already have the right to organize via the National Labor Relations Act and the Illinois Public Labor Relations Act. So, it is difficult to forecast how much different the post-Amendment landscape will look.
One thing is certain—the Amendment has expanded the rights of employees in Illinois to collectively bargain and organize, while simultaneously prohibiting the passage any law that interferes with those rights. Furthermore, the Amendment could apply to permit unionization of vocations not currently allowed under Illinois law and might apply to private-sector employees.
Historically, the National Labor Relations Act (“NLRA”) has governed the rights of certain private-sector employees to unionize and collectively bargain. The NLRA has generally preempted state laws when conduct is “arguably protected” by the NLRA. Accordingly, since the Amendment applies to employees generally, not just public-sector employees, nobody knows whether the Amendment will apply to private-sector employees. The best indication comes from Senator Villivalam, a sponsor of the Amendment, who stated that, “as federal labor law stands today, the Amendment could not apply to the private sector.” That notwithstanding, it is unclear how the courts will react to the Amendment.
The Amendment may also have an impact on “right to work” legislation. Not only does the Amendment broaden employee rights, but it also explicitly prohibits “any new law that interferes with, negates, or diminishes” the right to organize and collectively bargain. In other words, the Amendment forbids Illinois from becoming a right to work (“RTW”) state or passing RTW legislation that would limit employees’ rights to collectively bargain. Currently, over twenty-five states have passed RTW legislation. RTW laws prohibit: (1) employees from being required to join a union; (2) employees from being compelled to pay union dues or fees; and (3) employees from being fired for joining a union. Contrary to RTW states, private employers in Illinois may require employees to join a union as a requirement of employment.
Also notably the broad language of the Amendment would prevent home rule municipalities from opting out of or invalidating its provisions, which occurred in 2017 when over 100 municipalities in Cook County “essentially nullified a new county paid sick leave ordinance through such measures . . . .”
Proponents of the Amendment assert that it will allow groups of formerly excluded workers to unionize and collectively bargain. Senator Villivalam sponsored the Amendment in part to give employees stability, stating that “even if RTW legislation is not a current threat, ‘future politicians can be different than the ones we have today.’”
Advocates also claim that all the Amendment does is protect current rights by safeguarding employees’ ability to collectively obtain better pay, hours and working conditions. Others claim that increasing wages will increase state revenues because “when working people do better they don’t just buy stocks, they buy dinner at local restaurants, they pick up a cup of coffee from a local shop. And that spending doesn’t just benefit those families and those small businesses, it really contributes to their local community as well as our entire state.”
Critics of the Amendment assert that it will “drive up taxes, give unions too much power, lead to more strikes and prompt companies to leave for more industry-friendly states.” Some allege that the undefined term “economic welfare” will give teachers and other unions the flexibility to strike without mediation. Others claim that unions will hold all of the power, government contracts will cost more, the “expanded subjects” in the Amendment will result in more costly negotiations, union contracts will be more expensive and taxpayers will ultimately to pay for it.
Much about the Amendment is presently unclear. However, one thing is certain: it will be some time before anyone knows the full extent that the Amendment will have on the workers, employers, and taxpayers of Illinois.