Background

Weeks of phone and text banks, TV and radio advertisements, thousands of door-to-door campaigners, as well as strong pro-labor lobbying resulted in the recent passage of the Illinois Workers’ Rights Amendment. On November 8, 2022, the Workers’ Rights Amendment (also known as Section 25 of Article I) passed with 58 percent (2.1 million) of Illinois votes. Upon its certification, the Illinois Constitution will now include the following language:

“Employees shall 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 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 work place 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 The Workers’ Rights Amendment Does

The Amendment largely tracks Section 7 of the National Labor Relations Act (NLRA), which applies to most private sector (including non-profit) employers nationally, in terms of protecting employees’ right to organize and bargain collectively regarding wages, hours and other conditions of employment. One potential expansion of those bargaining rights, however, is that the Amendment includes the right to bargain “to protect their economic welfare and safety at work.” The Amendment does not define “economic welfare” and that term is not among the recognized subjects of bargaining under the NLRA. Therefore, an argument can be made that the Amendment greatly expands the rights of Illinois workers to bargain on a wide variety of issues.  However….

Is the Amendment Preempted by the NLRA?

Even if the Amendment were to be construed as creating a new subject of collective bargaining – i.e., the protection of employees’ “economic welfare and safety as work” – it would likely have no effect on private sector collective bargaining under the doctrine of federal preemption. The NLRA has long been held by the courts as completely preempting state efforts to regulate collective bargaining in the private sector. Any attempt by workers or unions to use the Amendment to expand their bargaining rights will likely be met with a legal challenge from employers on federal preemption grounds. 

Proponents of the Amendment have argued that its prohibition of any law impairing or diminishing the bargaining rights of workers strengthens those rights and provides a pillar of support for workers. But that view may also be undermined by the preemption doctrine because the NLRA preempts essentially any state regulation of the bargaining process, regardless of whether that regulation would broaden or diminish the rights of employees.

The NLRA does not apply to collective bargaining in the public sector, however, so it is possible that the Amendment could serve to protect bargaining rights from adverse legislation, and to expand the scope of bargaining subjects for state and local government employees in Illinois. Time will tell whether the Amendment can be used successfully for that purpose.

A Block on Right to Work Legislation? 

The one area where the Amendment could have a significant impact on private sector employers and employees in Illinois is in potentially preventing the enactment of a “right to work” law. The NLRA allows states to pass laws prohibiting employers and unions from entering into agreements that require employees to become union members as a condition of their employment. A number of states have enacted right to work laws in relatively recent years. The Amendment would, on its face, bar Illinois from becoming a right to work state. Whether that part of the Amendment withstands a legal challenge remains to be seen.

The Courts Weigh In

While we can analyze the Amendment against the backdrop of existing law, it is also true that Illinois has become one of just a very few states to enshrine collective bargaining rights in its constitution. We can expect that many questions regarding the meaning and scope of the Amendment will be litigated where there could be some unexpected answers. We will be monitoring those developments closely and will post updates as they occur.