Fact check: Private sector workers excluded from Amendment 1

Mailee Smith

Staff Attorney and Director of Labor Policy

Mailee Smith
October 6, 2022

Fact check: Private sector workers excluded from Amendment 1

Despite proponents’ claims, the rights outlined in Amendment 1 cannot apply to non-government employees. U.S. Supreme Court precedent already makes that clear. So did the proposal’s Illinois Senate sponsor.

The law is not on the side of Amendment 1 proponents claiming the amendment’s intended rights can apply to all Illinois workers.

While the language of the amendment appears to provide rights to all “employees,” that is misleading. The state is not allowed to provide unionization or collective bargaining rights to workers in the private sector because the federal government has already done so through the National Labor Relations Act.

Whenever the federal government regulates something, states can’t also try to regulate the same thing. Doing so runs afoul of the Supremacy Clause of the U.S. Constitution.

Before voting on Nov. 8, voters need to know three things regarding proponents’ claims:

  • The Supreme Court has already ruled that states cannot regulate private-sector union issues
  • The amendment’s Senate sponsor stated during Senate debate that the amendment cannot apply to the private sector
  • The resulting conflict in federal and state law would likely result in expensive litigation until a court weighs in to ultimately confirm what the U.S. Supreme Court has already said: states can’t regulate private-sector collective bargaining, and neither can Amendment 1.

Amendment 1 simply cannot do what proponents say it will do.

  1. Supreme Court: States can’t regulate private sector union rights covered by the NLRA

The U.S. Supreme Court has already made it explicitly clear the National Labor Relations Act precludes states such as Illinois from providing rights or regulating unionization in the private sector: “States may not regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits.”

The U.S. Court of Appeals for the Seventh Circuit has made that clear as well, ruling an Illinois law that was preempted by the NLRA violated the Supremacy Clause of the U.S. Constitution.

This is cut and dried. Because Amendment 1 is preempted by the NLRA, it cannot apply to private-sector workers.

That means the “fundamental right” it creates for “employees” is really only for government workers in Illinois, which make up just 7% of the state’s adult population.

The only part of Amendment 1 that could apply in the private sector is the last provision, which bans laws that would allow private-sector union workers to decide for themselves whether to join or pay a union. But that provision is a restriction on – not a right granted to – private-sector union workers, and it bucks the trend of the majority of states.

  1. Villivalam: Amendment 1 cannot apply to the private sector

Even the amendment’s sponsor in the Illinois Senate conceded it could not apply to the private sector.

State Sen. Ram Villivalam, D-Chicago, stated the following during Senate debate: “As the Members of the house should be aware, the National Labor Relations Act governs organizing and collective bargaining in the private sector and, as such, preempts any direct State regulation of the subject. Therefore, as federal law stands today, labor – excuse me, therefore, as federal labor law stands today, the Amendment could not apply to the private sector (emphasis added).”

Villivalam further claimed the term “employee” is used in the amendment as it is used in the Illinois Public Labor Relations Act and the Illinois Educational Labor Relations Act, thereby applying to the government employees covered by those laws.

The amendment’s inapplicability to private-sector workers has been echoed by others. Martin Malin, who founded Chicago-Kent College of Law’s Institute for Law and the Workplace, told the Chicago Tribune that “federal labor laws likely would preempt [Amendment 1’s] expansions for many, if not all, private workers.”

Yet proponents of Amendment 1 continue to mislead the public, claiming it will provide rights to workers in the private sector, such as the nurses and construction workers in their ads.

It legally cannot.

  1. The likely result: expensive, patchwork litigation

The unconstitutional conflict Amendment 1 creates between federal and state law would likely generate legal questions that would end up in court. Private-sector employers could face unfair labor practice claims by failing to comply with Amendment 1’s expanded subjects of bargaining. The result would be expensive, patchwork litigation in which employers are left to fend for themselves as issues arise.

Despite their likelihood of ultimately prevailing, no private employer would want to be the “test case” for that sort of litigation.

Importantly, no private sector workers would lose rights if voters reject Amendment 1. They are already protected under the NLRA. The same is true for state and local government workers, who have broad protections under the state’s Illinois Public Labor Relations Act and the Illinois Educational Labor Relations Act.

While private-sector workers get no benefit from Amendment 1, they do get to join government workers in paying for it. Passing Amendment 1 would lead to higher property taxes in Illinois, with the increase conservatively estimated at $2,149 for the typical household during the next four years.

That estimate is based on the long-run average growth rate of Illinois property tax bills. But Amendment 1 would likely accelerate that growth, expanding the bargaining power of government union bosses to negotiate over a nearly endless array of subjects, ultimately forcing all Illinoisans to pay the bill for costly contract concessions that carry more weight than state law and don’t exist in any other state. Exactly how much faster is an open question.

Bottom line: Illinoisans need all the facts before voting. That’s not something proponents of Amendment 1 are offering.

Want more? Get stories like this delivered straight to your inbox.

Thank you, we'll keep you informed!