Supporters of Amendment 1 should get their story straight. Latest double-talk is about workplace safety. – Wirepoints

By: Mark Glennon*

The latest exhibition of the absurdity of Amendment 1 comes from supporters themselves. Also called the Workers’ Rights Amendment, we’ve written earlier why it may be the most important vote on November’s Illinois ballot.

Amendment supporters have now added emotional claims about workplace safety, spoken as if thousands of pages of rules and regulation on that don’t already exist. The amendment purports to supplant all that existing regulation with a two-sentence constitutional right that’s hopelessly vague and wildly overwritten. And they are contradicting earlier comments by one of the amendment’s key supporters.

Amendment 1 will “guarantee Illinois workers their right to raise important safety concerns and ensure that every Illinoisan has access to a safe workplace.” That’s according a letter to the editor published in Saturday’s Chicago Sun-Times from the presidents of The Illinois AFL-CIO and the Chicago Federation of Labor. “Passing the Workers’ Rights Amendment and enshrining these rights in our state constitution would,” they wrote, “send a loud and clear message to the rest of the country that Illinois won’t compromise on the backs of working people.” The AFL-CIO President spoke to the same effect at a labor event last week, saying “Workplace safety is why we’re advocating for the passage of the Illinois Workers’ Rights Amendment.”

Who could be against that — safety?

The pitch sounds appealing, but what does it really mean and what’s to become of the massive body of workplace safety rules already in place?

Private sector workplace safety is regulated in Illinois by OSHA, the federal Occupational Safety and Health Act, and detailed regulations and rulings thereunder. Illinois’ public sector workplaces are regulated by the state’s own version of OSHA.

Is Amendment 1 intended to trump all that, supplement it, amend it or not have any effect at all on existing law? Aside from intentions, what would it do in fact?

The amendment’s wording clearly claims to trump everything, but its supporters don’t have their story straight.

Here’s what the amendment says if you focus just on the words pertinent to workplace safety:

Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating…working conditions, and to protect their economic welfare and safety at work. 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….

In just those two sentences, Amendment 1 thereby purports to create a new, standalone, constitutional right to workplace safety, among other things. But it’s absurdly vague. There are no specifics, no definitions and no linkage of any kind to existing federal or state regulation.

And what are we to make of comments made earlier by Sen. Ram Villivalam (D-Chicago), the lead sponsor of the measure in the Senate to put the amendment on the ballot. He said the amendment would have minimal impact on private-sector workers because the National Labor Relations Act governs organizing and collective bargaining in the private sector, as reported by Capitol News Illinois.

Wait, what? Don’t worry, Villivalam was essentially saying. All the existing law will stay in place. Let’s just slap on a new, undefined, broadly invalid right, Villivalam is saying, and let the courts strike down the parts that are illegal.

That’s the federal preemption issue we discussed before respecting other matters in labor law. In the long run, many of the infinite interpretations that the amendment is susceptible to would definitely be struck down because they are overridden by federal law. But it would take years of litigation sorting out what is subject to preemption and what isn’t. The same preemption issue applies to workplace safety and OSHA.

Villivalam also said the intent of the amendment for public workers was to protect the right to collective bargaining that is already established under Illinois law.

If that was the intention, why didn’t they say just that? Collective bargaining rights are defined in great detail under current law, but the amendment would constitutionalize them with words that mean whatever you want.

Supporters of the amendment and news stories on it have often seemed to say that the idea behind the amendment is to ensure the state doesn’t ever goes backwards on worker rights. But the amendment simply doesn’t say that. It creates a whole new constitutional right independent of existing rights, subject to interpretations as vast as your imagination.

So, which is it, amendment supporters? Is there something new and wonderful for workers under the amendment or does existing law stay in place?  Either way, why does the amendment say something entirely different? We think they are being duplicitous by claiming on the one hand that preemption limits the effect of the amendment, but shooting for the stars with a new right that’s infinitely broad.

A lawsuit is now pending to kick the amendment off November’s ballot, described here. Amendment supporters would be wise to throw in the towel on that lawsuit and let this dog die die. If it doesn’t, we hope and expect that Illinois voters will come to see what a monstrosity it is and turn out in droves to defeat it.

*Mark Glennon is founder of Wirepoints.