The impact of the labor amendments will likely be decided by the courts

The opposing sides of a recently approved amendment enshrining collective bargaining rights in the Illinois Constitution have little in common, but they do agree on one thing: the real-world effects of the change will be determined at the bargaining table and in courtrooms for years to come.

While the amendment granting workers a “fundamental right” to organize and trade won’t be added to the state’s governing document until the November election results are certified on Dec. 5, The Associated Press determined last week that the measure received at least for 50% of the total votes, one way to pass.

The amendment guarantees the right of workers to negotiate “wages, hours, and conditions of work, and to protect their economic well-being and safety on the job.” It also prohibits the enactment of any state or local laws “that impede, deny or diminish” that right, including so-called right-to-work laws that prohibit contracts between employers and unions that require union membership as a condition of employment.

Nearly every phrase of the 119-word amendment is likely to be scrutinized by labor and management attorneys as new labor groups seek to organize and existing unions use the new language to strengthen their positions at the bargaining table.

Among the questions for potential litigation are who is considered an “employee” covered by the amendment, how the language fits with existing state and federal law, and what falls within the boundaries of “economic welfare” and “occupational safety.”

“The courts are going to color this thing and tell us how to answer these kinds of questions,” said Mark Pulos, executive director of the Fair Contracting Foundation of Indiana, Illinois and Iowa and one of the drafters. amendments.

“A bunch of smart lawyers will probably do a good job on both sides and limit its application and scope through people on the employer side, and expand its application to people who speak on behalf of labor,” Poulos said.

One of the ripest areas for potential conflict is whether freelancers and gig workers, such as ride-sharing drivers and delivery drivers, qualify as employees entitled to organize and bargain under the amendment.

Poulos and other supporters point to those workers, as well as farmworkers and managers who are also not covered by the federal law governing collective bargaining, as potential beneficiaries of the amendment.

“We would argue that these clearly excluded categories of employees under the National Labor Relations Act would now be covered and have a fundamental right under the state constitution if you can actually consider yourself an employee under state law,” Poulos said. , noting that there are several methods for determining whether someone may be an employee or an independent contractor.

But Aimee Delaney, a labor and employment attorney and partner at the Chicago law firm Hinshaw & Culbertson, said any attempt to organize independent contractors under the new amendment could be met with skepticism in the courts.

“To me, that language (of the amendment) should be changed,” Delaney said. “An independent contractor is not an employee.”

This term was used by the drafters of the amendment “Employees” rather than “workers” or “persons” are “two words that will have a very different impact in this regard,” she said.

“I don’t know how realistic it would be if there was an effort or a focus on independent contractors,” she said.

One potential way to address this issue would be to pass a state law that defines certain contract workers as salaried employees for organizing and bargaining purposes.

However, that approach could put the state at odds with federal law governing these issues, said Michael LeRoy, a professor of labor and employment relations and law at the University of Illinois at Urbana-Champaign.

“That would be problematic because it would prevent a comprehensive construction of the National Labor Relations Act for elections and voluntary union recognition,” Leroy said.

But if a state were to pass laws that extend other protections, such as a minimum wage or workers’ compensation, to independent contractors, which would likely be on a constitutionally safe footing, he said.

Even before the amendment was put before voters, opponents went to court in an unsuccessful attempt to block it from being placed on the ballot, arguing that it would be an unconstitutional attempt to usurp powers reserved for the federal government.

The initiative was spearheaded by the conservative Liberty Justice Center and the Illinois Policy Institute, based in Chicago, which sought to file a lawsuit on behalf of taxpayers who opposed the use of public funds to put an allegedly unconstitutional amendment on the ballot.

The gist of their argument was that the amendment violated the Supremacy Clause of the US Constitution by creating a state-level right to collective bargaining for private sector workers, a subject reserved for the federal government under the National Labor Relations Act.

But a Sangamon County judge found that the Legislature followed the proper method of placing the question on the ballot. The judge also held that even if the amendment were excluded by federal law with respect to private sector workers, that would render the amendment “void, not void, because it would still apply to situations not covered” by the federal law, and enter effect if the federal law were repealed.

A state appeals court upheld the lower court’s ruling, but did not address the constitutionality of the amendment, deeming it “premature until it takes effect.”

The Liberty Justice Center — best known for its victory in the U.S. Supreme Court’s Janus case, which overturned so-called fair share amounts collected from public employees who dropped their union memberships — is “still considering” how to proceed in its fight against the amendment. once it goes into effect, said Jacob Hubert, president of the organization.

“We’ll have to wait and see what happens here,” he said. “We’re going to have to think about different options to challenge that.”

In addition to questions about whether unions are trying to supersede federal labor laws, Hubert argues that, under the amendment, collective bargaining agreements can be used to override state laws.

Hubert and other opponents also argue that wording regarding the right to trade around “economic well-being” and “occupational safety” would open up many new subjects for binding bargaining at the bargaining table.

He pointed to a Twitter user’s claim that the Chicago Fraternal Order of Police could use its contract negotiations to overturn provisions of the state’s controversial criminal justice reform, which the union opposes.

“I guess that’s the argument we’re going to see,” Hubert said. “When the law currently deals with things like working conditions, well, it says you can bargain over those things. And so it will take precedence over what the state law says against you.”

Poulos rejected both of these readings of the amendment.

“There is nothing in this amendment that suggests that state law cannot operate after this amendment is passed,” Poulos said. “Nothing.”

As negotiators, Poulos said the idea is not to “massively expand all kinds of mandatory bargaining items,” but to force employers to look at existing items — wages, working hours and working conditions — “with a broader lens “. than today.”

The purpose of the amendment is to set a floor for workers’ rights and prevent business interests and others from coming to the General Assembly to try to roll back those rights, he said.

“The main goal of this amendment is to get people to the negotiating table and get them to stop driving to Springfield,” Poulos said. “We think the best place for that is trade.”

dpetrella@chicagotribune.com