The So-Called “Workers’ Rights” Amendment Will Hurt Illinois Employees

By Julie A. Noel & Richard A. Russo of Davis & Campbell L.L.C.

Earlier this year, the Illinois legislature passed a proposed amendment to the Illinois Constitution that would, if ratified by voters on November 8, 2022, significantly alter the landscape of collective bargaining in Illinois. The so-called “Workers’ Rights Amendment” (“Amendment”) purports to create a fundamental right to bargain collectively and protect “economic welfare and safety at work” among other things. While proponents of the Amendment suggest that the change will leave Illinois employees better off, a more careful analysis reveals the opposite.

Under Illinois law, workers’ rights are codified through long-standing legislation, including the Illinois Public Labor Relations Act, the Collective Bargaining Freedom Act, and the Illinois Educational Labor Relations Act.  The federal National Labor Relations Act provides additional rights and protections for private sector labor unions and employees. As a result, Illinois employees have some of the most favorable labor conditions in the United States.

Why, then, is the Amendment needed? Proponents argue that state laws like the Illinois Public Labor Relations Act, which was enacted in 1984, could be changed or eliminated altogether because they are not embedded in the Illinois Constitution. In other words, future legislatures could work to restrict the existing rights of labor unions. While this is true in theory, the State of Illinois has been controlled by pro-labor Democrats since 2002.[1] Drastic legislative changes are highly unlikely given the state’s history and establishments.  If anything, more pro-labor legislation can be expected of the Illinois State Legislature for the foreseeable future.

Despite this proffered reasoning, the true intent of the proposed Amendment is revealed in the following language of the Amendment:

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

The language demonstrates that the proposed Amendment is a clear attempt to amend the Illinois Constitution to prevent Illinois from ever becoming a “Right to Work” state.  In a “Right to Work” state, a worker cannot be forced to join a union or pay a fair share fee to the union as a condition of employment. Most of Illinois’ surrounding neighbors, including Indiana, Michigan, Wisconsin, Iowa, Tennessee, and Kentucky, have enacted Right to Work laws.[2] Stripping Illinois employees of their right to choose their level of participation and monetary support of a union certainly does not provide additional protection to workers. Rather, it creates a Constitutional right for unions to demand fees and “fair share” premiums from Illinois employees who lack interest in union membership and/or financially contributing to unions.

Unions contend that without fair share payments, they would be unable to adequately represent employees. But this argument, too, lacks merit. Unions have been an established part of the American workforce and have marketed themselves to employees for over a century. Union representatives bear responsibility for communicating membership benefits to prospective members to secure voluntary engagement and resources from workers.  After weighing the potential benefits, employees should undoubtedly have a choice to join—or not join—the union. The clear language of the Amendment is designed to permanently prevent this choice. Illinois workers deserve more. Simply put, the rights of workers to unionize and bargain collectively is well-settled law under federal and Illinois state statutes.   The proposed Amendment to the Illinois Constitution, at this juncture, is not needed to provide workers with such rights.[3]  For the reasons above, the Amendment will not provide Illinois workers with expanded rights—it will actually limit their rights.

[1] See Edward McClelland, Opinion: How Illinois Became a One-Party State, Chi. Mag. Oct. 19, 2021 at 5:39 PM, https://www.chicagomag.com/news/opinion-how-illinois-became-a-one-party-state/

[2] See National Right To Work Legal Defense Foundation, https://www.nrtw.org/right-to-work-states/.

[3] There is an argument that the proposed Amendment is pre-empted by the federal National Labor Relations Act, but such argument will not be addressed herein.