Illinois Voters Approve a Constitutional Right to Organize

Illinois voters have spoken: 2022 was the year of the organized worker. Adding to a mountain of evidence that workplace issues are on Americans’ minds, the 2022 general election saw the passage of a state constitutional amendment guaranteeing workers the right to organize and collectively bargain with their employers over wages, working conditions, benefits, and other workplace issues. The Illinois Right to Collective Bargaining Amendment, more colloquially known as the Workers’ Rights Amendment, comes on the heels of successful union organizing efforts across the country. Last year, baristas, bakers, medical professionals, and workers in retail, warehouses, factories, and universities organized and won union recognition and contract campaigns. This effort included 48,000 University of California graduate student workers who struck for five weeks at the end of 2022. Labor groups and activists celebrated the passage of the Amendment as a monumental victory for Illinois’ working families and a portent for potential federal legislation. Business leaders and conservative policymakers, on the other hand, expressed concerns that the new protections would force some businesses to move out of state and may ward off future business investments in Illinois. It may take a long time and some legal tinkering to figure out how the Amendment will impact workers, but Illinois may take clues from other states’ experiences with amending their constitutions to address workers’ rights.

The Workers’ Rights Amendment initially passed the Illinois State Senate and House in 2021. It survived a legal challenge from a conservative think tank, The Illinois Policy Institute, which argued against the constitutionality of the Amendment, stating that the federal National Labor Relations Act (NLRA) preempts similar state laws. The 4^th District Appellate Court disagreed with that argument and allowed the Amendment to go before the voters on the November 2022 general election ballot. With economic issues looming large in this past election, Illinois voters chose to join just three other states (New York, Hawaii, and Missouri) in providing workers with a constitutional right to organize. Crucially, and unique among states with labor protection laws, the Amendment prevents any attempts to enact so-called “right-to-work” (RTW) laws, which prohibit labor unions from collecting fees from non-members to cover the costs of their employment contract negotiations.

In a statement to The Center Square just a few weeks before the election, Illinois Chamber of Commerce President Todd Maisch echoed a frequent concern among the business community that proscribing RTW laws will discourage new investment in the state. Other business and manufacturing groups have shared this sentiment, believing that codifying legislative issues in the state constitution creates an undue barrier to adjusting public policies related to workers’ rights in the future. Business leaders feel future policy changes may be necessary to encourage and foster new business development during economic downturns. There is an additional possibility that businesses currently operating in the state will shift their operations to other, less union-friendly states like Tennessee, which recently passed its own state constitutional amendment preserving and guaranteeing RTW.

Tennessee’s RTW legislation has existed for 75 years, since the Taft-Hartley Act of 1947 first allowed states to limit labor unions’ operations, meaning the state’s new constitutional amendment merely formalizes and affirms voters’ support of the existing law. Business leaders in Tennessee and across the country have applauded the amendment as a major asset for encouraging development in the state. Indeed, some research supports the assertion that RTW laws are strong attractors of new businesses. In a study examining Idaho’s RTW law, Dinlersoz and Hernandez-Murillo (2002) find that in comparison with neighboring non-RTW states, Idaho saw an increase in manufacturing investment and larger manufacturing companies moving into the state after enacting the law. Chava et al. (2020) observe that unionized firms in RTW states hire more workers than in non-RTW states, and executive-level compensation and dividends to shareholders increase after the passage of a RTW law. These researchers also note that firms have the extra revenue to invest in assets and payouts to shareholders because the passage of RTW laws correlates with reduced salaries and increased layoff rates during financial downturns.

Other research shows that RTW laws are associated with lower unionization rates, lower wages, more frequent unfair labor practice violations, and a reduction in labor unions’ bargaining power. This evidence generally spells trouble for workers in RTW states, who bear the greater burden when firms choose between shareholder dividends and operating costs. It is much easier for firms in RTW states to initiate layoffs, and when layoffs occur, it does not necessarily mean that payouts to shareholders decrease. Research conducted by Manzo et al. at the Illinois Economic Policy Institute finds that by prohibiting future RTW laws, the Workers’ Rights Amendment is estimated to safeguard $43 billion in workers’ earnings annually and prevent thousands of workers from losing health insurance, as compared with states where the right to organize is not protected at the state level. The prohibition of RTW legislation is a huge win for labor unions and the workers they represent, but what will it mean to Illinois workers and employers to have a constitutional right to organize? Will all workers get to enjoy this new right?

New York state has been wrestling with this very question since 2015. Crispin Hernandez, a farmworker who was fired from his job while attempting to organize his fellow workers, filed a lawsuit against the state claiming that Section 17 of New York’s Bill of Rights expressly guaranteed him the right to organize without retaliation. While the NLRA guarantees workers the right to organize and collectively bargain with their employers, it explicitly excludes agricultural and domestic workers. This exclusion has led to depressed wages and precarious, often dangerous working conditions in these professions. Like some other states, New York has had additional protections for workers excluded by the NLRA, but a challenge to Section 17 in the 1940s upheld the exclusion of agricultural workers. Hernandez argued that the exclusion was unconstitutional as it violated equal protection and due process laws, and abridged the right to freedom of association. He also argued that the exclusion was founded on racially discriminatory grounds. Hernandez won his case on appeal, and the New York state Appellate Court determined in 2019 that the right to organize and collectively bargain one’s working conditions is a fundamental right that cannot be narrowed to exclude certain types of workers without a compelling reason. Thus, many workers who had up to that point been excluded from certain protections in their workplaces now had the right to organize without fear of retaliation.

The Workers’ Rights Amendment, like the decision in Hernandez v. State, may offer a blanket protection to all workers on the basis that the right to organize is fundamental to employment. The broad language is likely to invite lawsuits to set definite boundaries around exactly who will get to exercise their right to organize under this constitutional amendment. If, or when, lawsuits are filed against the Amendment, the legal arguments used to decide Hernandez – specifically, if the “right to organize is considered fundamental, then a court could hold that this right may not be protected differently as between workers in different industries” – could have massive ramifications for how Illinois’ new Amendment is interpreted.

This means that workers in Illinois who have never had a protected right to join or form a union may find they now have incentives to organize. We could see a wave of organizing in nontraditional sectors: seasonal and permanent agriculture, contract workers in the “gig” economy, seasonal retail and food service workers, migrant workers, nannies and housekeepers, and many other precarious workers who so often go under-the-radar in conversations about workers’ rights. Additionally, the prohibition of any future RTW laws in Illinois means that businesses that rely on nontraditional workers (e.g., rideshare companies like Uber and Lyft) may rethink operating in a state that protects the right to organize across the board. It will be up to the state’s courts to decide how to balance these competing interests. The Illinois Workers’ Rights Amendment has opened the door for workers to gain bargaining power, but whether Illinois will follow the path set in Hernandez and prop the door open for all workers, or if business interests will regain some leverage through the courts, remains to be seen.

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Burdick, Benjamin. “Hernandez v. State: The Fundamental Right to Organize under New York’s Constitution.” Berkeley Journal of Employment and Labor Law 41, no. 2. (2020): 409-431. https://heinonline.org/HOL/P?h=hein.journals/berkjemp41&i=423.

Chava, Sudheer, András Danis, and Alex Hsu. 2020. “The Economic Impact of Right-to-Work Laws: Evidence from Collective Bargaining Agreements and Corporate Policies.” Journal of Financial Economics 137 (2): 451–69. https://doi.org/10.1016/j.jfineco.2020.02.005. 

Dinlersoz, Emin M., and Ruben Hernandez-Murillo. “Did” Right-to-Work” Work for Idaho?.” REVIEW-FEDERAL RESERVE BANK OF SAINT LOUIS 84, no. 3 (2002): 29-42. https://web.archive.org/web/20020228015828id_/http://www.uh.edu:80/~edinlers/REVIEW.PDF.

Fortin, Nicole, Thomas Lemieux, and Neil Lloyd. 2022. “Right-to-Work Laws, Unionization, and Wage Setting.” w30098. Cambridge, MA: National Bureau of Economic Research. https://doi.org/10.3386/w30098. 

VanHeuvelen, Tom. “The right to work, power resources, and economic inequality.” American Journal of Sociology 125, no. 5 (2020): 1255-1302. https://www.journals.uchicago.edu/doi/10.1086/708067#_i27