On November 8, 2022, Illinois voters approved Illinois Constitutional Amendment 1 (the “Workers’ Rights” or the “Amendment”), which amends the state constitution to guarantee workers a broad right to collective bargaining. Originally passed as a proposed amendment by the Illinois State Legislature on May 26, 2021, the Amendment received 58% of the vote, with over 2.1 million ballots cast in its favor.1 The Amendment states:
Employees have the fundamental right to organize and bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours and working conditions, and to protect their economic well-being and safety at work. No law shall be passed which prevents, denies or abridges the right of employees to organize and bargain collectively for their wages, hours and other terms and conditions of employment and workplace safety, including any law or regulation which 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.2
This Amendment would have a significant impact on bargaining rights in both the public and private sectors, but faces potential preemption by the National Labor Relations Act.
The Amendment’s Broad Language Could Expand Employees’ Collective Bargaining Rights
Rather than tracking the language of federal or other state collective bargaining laws, the language of the Amendment is arguably broader in some areas. The language of the Amendment raises questions about who is permitted to bargain with an Illinois employer, when such bargaining is permitted and the scope of such bargaining.
For example, both the NLRA and Illinois public sector labor law protect the right of employees to organize and bargain collectively regarding wages, hours, and other terms and conditions of employment.3 The Amendment, however, adds to these topics an employee’s right to bargain “to protect their economic well-being and safety at work.” The legislature does not define what is meant by the term of art “economic welfare,” but it probably indicates a concept that extends beyond traditional NLRA terms and conditions of employment.
As a second example, under existing federal and state laws, once a union is certified as the collective bargaining representative for an appropriate bargaining unit, only the union may negotiate with an employer on matters relating to wages, salaries, hours and other terms of employment. .4 The Amendment, however, gives employees the right to bargain collectively “through representatives of their own choice,” not just through unions. As a result, this language could potentially open the door for groups of employees — rather than a certified union — to bargain over terms and conditions of employment.
Possible Application of NLRA Preemption Doctrine on Private Sector Employees
The application of the Amendment in the private sector also raises questions about the extent to which the NLRA preempts the subject matter covered by the Amendment. By its terms, the Amendment applies to all employees, not just public sector employers.5 Private sector Illinois employers are expected to argue that the Amendment cannot be applied to private sector employers because its subject matter is preempted by the NLRA.
Federal preemption in the private sector dates back to the Supreme Court’s interpretation of the NLRA beginning in 1959 with the case San Diego Building Trades Council v. garmonand has been consistently recognized since that time.6 Generally, courts have applied preemption under the NLRA to expand to the entire subject matter of the NLRB. In this regard, the NLRA’s preemption of state law is broader than preemption that is recognized under other workplace laws. For example, federal laws such as the Fair Labor Standards Act and Title VII of the Civil Rights Act preempt state law only to the extent that federal law ensures employee rights that are greater than those provided by state law.7 Therefore, to the extent the Amendment is interpreted as establishing a constitutional right of all employees (as opposed to only certified unions) to bargain collectively, or to expand the subjects of bargaining from those listed in the NLRA to include new subjects such as matters of economic welfare, this raises a significant question of whether courts will decide that the NLRA preempts the Amendment in its entirety as applied to the bargaining rights of private sector employees.
Indeed, this question has already resulted in legal action by opponents of the Amendment based on NLRA preemption. In April 2022, a lawsuit was filed seeking to restrain and compel the Amendment from being placed on the ballot on the basis that the NLRA already regulates private sector collective bargaining and, therefore, the Amendment is subject to NLRA preemption.8 The Illinois Court of Appeals ruled, however, that the issue was not ripe for challenge, and thus the court did not address the merits of the precautionary argument. Now that the Amendment has passed, the NLRA preemption argument is expected to be the subject of future litigation.
Protection of Union Security
The Amendment also appears to prevent Illinois from becoming a right-to-work state. Right-to-work legislation prohibits compulsory union membership. Currently, 28 states are right-to-work states, including the nearby states of Indiana, Iowa, Michigan, and Wisconsin.9
Section 14(b) of the NLRA allows states to prohibit mandatory union membership as a condition of employment.10 The Amendment, however, does the opposite by specifically prohibiting:
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.11
Thus, this language would effectively block any future legislative attempt to enact a private sector right-to-work law in Illinois. Again, this language could be challenged based on NLRA preemption, but the outcome of such a legal challenge is uncertain.
In the public sector, the Amendment could result in a state’s rights constitutional challenge to the Supreme Court’s stance on fair shareholdings. During the decision of the Supreme Court in Janus was based on the court’s interpretation of an Illinois statutory provision on fair share fees, the court’s analysis may change when faced instead with an amendment enacted by Illinois voters, as applied to Illinois public sector employees.12 In such a case, the notion that fair share prices violate the First Amendment of the US Constitution seems less compelling.
Given the open questions raised by the Amendment, public and private sector employers alike should be aware of the Amendment’s potential to significantly expand trade union rights. However, it is anticipated that the Amendment will be tested through extensive litigation, thus giving Illinois workers and employers greater clarity about the full extent of the Amendment’s impact.