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Section 1

Building Worker Power in Cities & States:
State Constitutions and Public Sector Collective Bargaining Rights

By CLJE:Lab 09/01/2024

Background

The Supremacy Clause of the Constitution establishes that state constitutions may not conflict with rights secured under the federal Constitution. State constitutions can, however, protect additional rights. As Justice William J. Brennan noted in 1977, “State constitutions … are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”1

In recent years, strategic efforts to bolster and protect a range of individual rights — including reproductive, voting, and workers’ rights — have focused on state courts and constitutions. In some state constitutions, the right to collective bargaining has been enshrined and reinforced, conferring protections on workers’ rights to protect them from erosion by anti-union legislation. Moreover, state constitutions have provided a path to securing rights for categories of workers excluded from federal collective bargaining law, such as agricultural workers and public sector employees.

Methods for amending constitutions vary by state, though most generally involve a process of democratic participation.2 In every state except Delaware, amendments proposed by state legislatures must go before voters, and 17 states allow citizens to propose and add constitutional amendments to ballots without the legislature.3 As such, proponents of worker power can leverage democratic mechanisms to pass worker-friendly amendments to state constitutions, even in states with less union-friendly legislatures.

Objective of State Intervention

State constitutions contain several categories of existing provisions that do or can protect, to varying degrees, workers’ rights to organize and collectively bargain. Constitutions in six states — Florida, Hawaii, Illinois, Missouri, New Jersey, and New York — explicitly affirm the right to collective bargaining. However, these protections have not always prevented hostile state legislatures from eroding workers’ rights, as seen in the passage of legislation in 2023 preventing payroll deductions for public sector union dues in Florida.4 Nevertheless, enshrining rights and protections within state constitutions has compelling benefits. For instance, because state constitutions are more difficult to amend than state statutes, rights guaranteed within constitutions tend to be less vulnerable to the political whims of changing legislatures.5

In addition, following the Supreme Court’s decision in Janus v. AFSCME,6 many states expanded protections for public sector collective bargaining through state laws or constitutional amendments. Some of these new provisions were designed to assist public sector unions in increasing membership or making collection of dues easier, thereby mitigating some of the impact of the Janus decision.

Preemption Risk

State constitutional provisions are a promising way to protect workers where federal law does not, especially for those workers excluded from federal labor law: agricultural workers, domestic workers, independent contractors, and state employees. However, where state constitutions substantively expand the collective bargaining rights of workers covered by the NLRA, preemption challenges will likely arise.

Options for State or Local Action

I. Challenging Laws Prohibiting Union Security Agreements

State laws that prohibit union security agreements, usually referred to as “right-to-work” laws, exist in 26 states, either through statutes or constitutional provisions.7 In recent decades, the movement to ban union security agreements has systematically weakened unions’ resources to bargain for their workers by making it illegal to collect fair share fees from workers represented by the union.8 Consequently, wages are 3.2% lower on average in right-to-work states than their non-right-to-work counterparts.9 What’s more, in 2018, the Supreme Court’s decision in Janus further eroded labor power by ruling that public sector unions could not require non-union workers to pay fees to cover the cost of representation,10 extending bans on union security agreements to the entire public sector. 

Several states have enshrined bans on union security agreements in their constitutions. For example, the Florida Constitution recognizes “the right of employees … to bargain collectively” but also declares “the right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization.”11 The Florida Supreme Court has interpreted this provision as prohibiting union security agreements in the state.

By contrast, the Illinois Constitution specifically protects union security agreements. In 2022, Illinois voters passed the Workers’ Rights Amendment, which not only enshrines the fundamental right for public sector workers to organize and bargain collectively but also creates a barrier against future attempts to ban union security agreements, making Illinois the first state in the country to do so. The amendment specifies that “no law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively … including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment” (emphasis added).12

Illinois Constitution Article I, Section 25

In 2023, similar constitutional amendments aimed at precluding future legislative attempts to erode collective bargaining rights were proposed in Vermont and Pennsylvania.13

Depending on their constitution, states have several options for using constitutional amendments to advance worker power in the right-to-work context. First, states with constitutional provisions like Florida’s, which have been interpreted to preclude union security clauses, can amend their constitutions to remove those clauses. Second, states where the constitution is silent on union security clauses can follow the example of Illinois and enshrine clear protection for collective bargaining rights in the constitution to preclude future adoption of any bans. Finally, in states with statutes barring union security agreements and no constitutional provisions on the issue, states can invalidate these statutes through either constitutional amendments or legislative repeal.

II. Protecting Public Sector Collective Bargaining

While the NLRA governs private sector workers’ labor rights, labor rights for state and local government workers — explicitly excluded from the Act — vary by and within states as well as by occupation. In recent years, efforts to undermine public sector collective bargaining have intensified in some states. States like Wisconsin have passed legislation restricting a range of collective bargaining rights for public sector workers, including limiting which conditions of work can be collectively bargained.14 A number of Republican-led states have since followed suit in rolling back public sector collective bargaining rights.15

Where state statutes and ordinances have sought to undermine public sector collective bargaining rights, state constitutions can provide a defense, even in states generally less friendly to worker organizing.16 In Missouri, the collective bargaining provisions in the state’s constitution have been interpreted as extending to both private and public sector employees, with the state court recognizing that “‘[e]mployees’ plainly means employees. There is no adjective; there are no words that limit ‘employees’ to private sector employees.”17 In 2021, the Missouri Supreme Court invoked this provision to strike down a state law placing limits on public sector unions.18 

There are several states where public sector workers still have no right to collective bargaining, and in some states, they also have no right to strike.19 In North Carolina and South Carolina, public sector collective bargaining is banned. In Texas and Georgia, only police and firefighters have the right to bargain. Additionally, there are states — primarily throughout the South — where the right is not protected, resulting in either no bargaining at all or sporadic bargaining in individual cities and counties.20 Thus, another option to build worker power is to expand collective bargaining rights for public sector workers in states where it is not allowed or not guaranteed.

III. Expanding Public Sector Collective Bargaining Rights

In the wake of the Janus decision, a few states passed statutes amending their public sector collective bargaining laws. These laws fell into several categories: 1) allowing unions to charge fees for certain services provided to nonmembers; 2) relieving public sector unions from certain obligations vis-a-vis nonpaying nonmembers; 3) expanding access rights for unions; and 4) limiting the time frame during which membership or dues authorization can be revoked by prescribing a window for such actions.

For example, in Massachusetts, the state legislature overrode the governor’s veto to pass a bill permitting unions to require nonmembers to pay reasonable costs and fees associated with grieving or arbitrating a matter under a collective bargaining agreement, including arbitrator fees and reasonable attorney fees.21 The law also allows the union to refuse to provide such services for employees who refuse to pay the fees. Additionally, it expands unions’ access to public employee information and public employer resources, allowing them to meet with all new employees and use the employer’s email system to communicate with them. Finally, the law sets new guidelines for the timing and form of revocation of dues authorization.

In New York, the legislature enacted several collective bargaining-related provisions in its 2018 Budget Act, passed just a few months before the Janus decision.22 The Budget Act allows unions to sign up members using an electronic authorization and dues deduction card for the first time. It also allows authorization cards to stipulate yearly windows as the only time when members may withdraw from the union. The New York law also includes provisions similar to those in the Massachusetts law regarding the duty of fair representation amendments and expanded access rights.

Spotlight: Adopting Bargaining For The Common Good Strategies in Public Sector Campaigns

Credit: Ted Eytan / Wikimedia

The National Education Association (NEA), the largest labor union in the United States representing public school teachers and other education workers, has successfully adopted Bargaining for the Common Good principles in their bargaining strategy, focusing on engaging a broad coalition of stakeholders, improving transparency, and creating a common language shared by the educators, their union, and state officials. Bargaining for the Common Good is a strategic approach to organizing and collective bargaining that grew out of the Kalmanovitz Initiative for Labor and the Working Poor at Georgetown University. Common good principles emphasize building coalitions and leveraging collective strength to push for policies that benefit the broader community at the bargaining table. Beyond improved pay and benefits, the NEA has won smaller class sizes, educator recruitment and retention programs, mental health support, and other resources by leveraging this approach.

Read More

California,23 New Jersey,24 Illinois,25 Washington,26 and Oregon27 have also passed post-Janus legislation to enhance public sector collective bargaining rights. 

IV. Considering Assembly Rights

All but three state constitutions — Maryland, Minnesota, and New Mexico — recognize a right to assemble. Some have argued that assembly rights extend protections to collective worker action, which could be interpreted accordingly at the state level.28 Indeed, in some states, assembly rights may potentially be interpreted broadly. However, there have not yet been any state court decisions that have interpreted assembly rights provisions as protecting unions, and any such argument would likely raise preemption challenges.

  1. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977). ↩︎
  2. See Jessica Bulman-Pozen and Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859 (2021). ↩︎
  3. John Dinan, Constitutional Amendment Processes in the 50 States, Brennan Center for Justice (July 24, 2023), https://www.brennancenter.org/our-work/research-reports/constitutional-amendment-processes-50-states. ↩︎
  4. Michael Sainato, DeSantis Leads Republican States’ Attacks Against Public Sector Unions, The Guardian, (Nov. 10, 2023),
    https://www.theguardian.com/us-news/2023/nov/10/anti-union-desantis-republican-florida-alaska.
    ↩︎
  5. Aubrey Sparks, State Constitutions and Protections for Workers, OnLabor Blog (May 16, 2018), https://onlabor.org/state-constitutions-and-protections-for-workers/. ↩︎
  6. Janus v. A.F.S.C.M.E., Council 31, 138 S. Ct. 2448 (2018) (holding that mandating union agency dues from public sector employees was unconstitutional compelled speech under the First Amendment). ↩︎
  7. Joey Cappelletti, Michigan Becomes 1st State in Decades to Repeal ‘Right-to-Work’ Law, PBS NewsHour (March 24, 2023), https://www.pbs.org/newshour/politics/michigan-becomes-1st-state-in-decades-to-repeal-right-to-work-law. ↩︎
  8. Janelle Jones and Heidi Shierholz, Right-to-Work is Wrong for Missouri, Econ. Pol’y Inst. (July 10, 2018), https://www.epi.org/publication/right-to-work-is-wrong-for-missouri-a-breadth-of-national-evidence-shows-why-missouri-voters-should-reject-rtw-law/. ↩︎
  9. Elise Gould and Will Kimball, “Right-to-Work” States Still Have Lower Wages, Econ. Pol’y Inst. (April 22, 2015), https://www.epi.org/publication/right-to-work-states-have-lower-wages/. ↩︎
  10. Janus v. A.F.S.C.M.E., Council 31, 138 S. Ct. 2448 (2018). ↩︎
  11. Fla. Const. art. I, § 6. ↩︎
  12. Ill. Const. art I, §25(a) (emphasis added); Jennifer Sherer, Illinois Workers’ Rights Amendment Sets New Bar for State Worker Power Policy, Econ. Pol’y Inst. (December 7, 2022), https://www.epi.org/blog/illinois-workers-rights-amendment-sets-new-bar-for-state-worker-power-policy-other-state-legislatures-should-seize-the-moment-to-advance-worker-racial-and-gender-justice-in-2023/. ↩︎
  13. PR. 3, Right to Collectively Bargain, Vermont General Assembly, https://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2023&sInd=0&body=H&type=B&bn=950; https://legislature.vermont.gov/bill/status/2024/PR.3. ↩︎
  14. Wis. Act 10 (2011). ↩︎
  15. Sherer, supra note 33. ↩︎
  16. Milla Sanes & John Schmitt, Regulation of Public Sector Collective Bargaining in the States, Center for Econ. and Pol’y Research (March 2014), https://cepr.net/documents/state-public-cb-2014-03.pdf. ↩︎
  17. Independence-Nat. v. Independence Sch., 223 S.W.3d 131, 136 (Mo. 2007).
    ↩︎
  18. Kaitlyn Schallhorn, Missouri Supreme Court Voids ‘Paycheck Protection’ Bill, The Missouri Times (June 1, 2021), https://themissouritimes.com/missouri-supreme-court-voids-paycheck-protection-bill/. ↩︎
  19. Mark Lieberman, MAP: Where School Employees Can and Can’t Strike, Education Week (March 16, 2023), https://www.edweek.org/leadership/map-where-school-employees-can-and-cant-strike/2023/03. ↩︎
  20. Alexia Fernández Campbell, Government Workers Don’t Have a Federal Right to Unionize. Democrats Want to Change That, Vox (June 225, 2019), https://www.vox.com/2019/6/25/18715531/public-sector-government-workers-union-bill-congress. ↩︎
  21. Mass. Gen. Laws ch. 73 (2019), https://malegislature.gov/Laws/SessionLaws/Acts/2019/Chapter73. ↩︎
  22. Report on the State Fiscal Year 2018-19 Enacted Budget, Office of the New York State Comptroller (April, 2018), https://www.osc.state.ny.us/files/reports/budget/pdf/budget-enacted-2018-19.pdf. ↩︎
  23. Cal. SB-866, ch. 53 (2018), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB866. ↩︎
  24. Responsible Collective Negotiations Act, NJ S3810 (2021), https://legiscan.com/NJ/bill/S3810/2020. ↩︎
  25. Il. General Assembly, Pub. Act No. 101-0620 (2019), https://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=101-0620&GA=101. ↩︎
  26. Wash. Laws 230 (2019), https://app.leg.wa.gov/billsummary?BillNumber=1575&Chamber=House&Year=2019. ↩︎
  27. Or. Stat. ch. 429 (2019), https://olis.oregonlegislature.gov/liz/2019R1/Measures/Overview/HB2016. ↩︎
  28. Marion Crain & Ken Matheny, Beyond Unions, Notwithstanding Labor Law, 4 U.C. Irving L. Rev.  561 (2014). ↩︎

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