Illinois voters have approved the “Workers’ Rights Amendment,” which will enshrine the right of employees to unionize and bargain collectively in the Illinois Constitution. The amendment provides that Illinois workers 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.”
The amendment further prohibits any law from being passed that interferes with, negates, or diminishes employees’ right to unionize and bargain collectively. Some critics of this amendment have speculated that this language could be used by public sector unions to seek to strike down current labor laws as diminishing employee rights (e.g., the requirement in the Illinois Educational Labor Relations Act that collective bargaining agreements include a “no-strike” provision that prohibits strikes during the term of the contract).
The language of the amendment would not appear at first blush to have much impact for public employers in Illinois, as most public-sector employees (with the exception of some statutory exemptions, such as supervisory, managerial, and confidential employees) already have the right to unionize and engage in collective bargaining, and employers are required to bargain over most terms and conditions of employment. We anticipate, however, that unions may rely on the amendment to seek to bargain over an even broader scope of topics and may challenge employer work rules or Illinois statutes they believe are interfering with their rights. We expect there will be litigation over the scope of this amendment, and ultimately the courts will decide what, if any, new rights this amendment gives to public employees.
We also expect private-sector employers may challenge the amendment as a violation of the Supremacy Clause of the U.S. Constitution, based on an argument that federal labor law preempts the amendment. This argument was raised in Sachen, et al. v. Illinois State Board of Elections, a case brought by a group of taxpayers who sought to block the amendment from being included on the ballot for the November 8th election, but the court did not reach the merits of the argument.
We will continue to monitor the amendment’s impact and report new developments. If you have any questions about the amendment or its potential impact on your labor relations, please contact Christopher Hoffman.
Workers’ Rights Amendment: https://www.ilsos.gov/publications/con_amend/ca_english.pdf