Labor law proposals make up ballot referendums in multiple states this November, as part of a wider trend of increased legislative activity in the absence of corresponding federal action. Several states have ballot initiatives that could impact labor relations throughout the country, or have already moved to enact such laws.
Constitutional right to work, right to organize: Tennessee is one of 27 states that has a right to work law prohibiting compulsory union membership. This November, state voters will decide whether to enshrine that law in the state’s constitution – a change that would be much harder to undo going forward. Meanwhile, Illinois voters will be confronted with an opposite choice: whether to create a fundamental state constitutional right to organize and collectively bargain – a guardrail against future right to work legislative initiatives in the state.
This November’s ballot measures are part of a wider trend. Labor proposals at the federal level, including the PRO Act, have failed to make significant headway for several sessions now despite a clear desire – from both sides of the aisle – to enact labor law reforms. States have moved to fill the gap, for better and worse. In addition to the above ballot referendums, a ballot proposition in California that could affect the healthcare industry found backing from organized labor thanks to a union battle with a single company, as further detailed in a recent Wall Street Journal editorial. Meanwhile, a law took effect in Connecticut earlier this year that curtailed employer speech in union campaign settings.
Outlook: Given the broad preemptive effect of the National Labor Relations Act, there are clear limits to the extent to which states can legislate labor relations and some of these laws are likely to face challenges on that basis. Nevertheless, similar to the increasing usage of administrative agencies – including those beyond the NLRB – to create labor policy, states will continue to try to creep into the labor space as long as congressional gridlock on labor issues continues.