CHICAGO – A federal appeals panel is mulling over the thorny issue of whether Illinois "home rule" municipalities, already empowered to impose a host of labor and employment-related regulations on businesses, should also be allowed to buck the state government and create local right-to-work zones within their boundaries.
During recent oral arguments before the U.S. Seventh Circuit Court of Appeals in Chicago, attorneys representing the village of Lincolnshire faced tough questioning from the panel of judges over whether the municipality is acting within its rights under Illinois' constitution and within the intent of federal labor law, or sowing "chaos" in an attempt to upend the judicial understanding of the law for decades.
Lincolnshire passed an ordinance in 2015 that established the village as a so-called right-to-work zone, preventing private companies situated within its borders from requiring employees to pay union dues via payroll deduction unless they chose to join a union.
Jacob Huebert
| Liberty Justice Center
Union organizations, including the AFL-CIO, claim the village had no right to pass such an ordinance as national labor relations law leaves that decision up to the states, many of which have passed what is called right-to-work legislation.
But, Lincolnshire's attorneys from the Liberty Justice Center argue Illinois' home rule standard allows the village to so designate itself, asserting that, unless an action is specifically barred by the state, then municipalities are empowered to act in the local interest, essentially as a political subdivision of the state.
Jacob Huebert, director of litigation at the Liberty Justice Center, who argued before the Seventh Circuit in late March, said the U.S. Supreme Court has ruled that the state has primacy on these issues.
And therefore, by extension, if a community has home rule powers under the lllinois state constitution, as does Lincolnshire, and the Illinois General Assembly has not banned a municipality from taking a particular action, it can do so.
"The plaintiffs did not present any evidence to support the position they took, and it is not an argument to say that it will create 'chaos,'" Huebert told the Cook County Record.
He cited a case out of the U.S. Court of Appeals for the Sixth Circuit in Kentucky, which ruled in favor of counties in both that state and in Ohio, a number of which had passed similar right-to-work ordinances.
Opponents point to a decision by the Kentucky State Supreme Court, which is within the Sixth Circuit, and which took an opposing view.
Home rule as a concept essentially means that any area where there is no explicit state legislation can defer decisions to the local government, said Ruth Schlossberg, an attorney with Crystal Lake-based ZRFM Law Group who is well versed on home rule.
So, Schlossberg told the Record, it might be expected that this is a clear argument in favor of the village of Lincolnshire and its ability to declare this a home rule issue.
In Illinois, for instance, cities and counties, including the city of Chicago and Cook County, have used their home rule powers to slap on a host of regulations on employers, ostensibly to protect workers, such as rules requiring paid sick leave, local minimum wage ordinances setting such required hourly wages well in excess of those required by the federal government or the state, and, most recently, a proposal for mandatory sexual harassment prevention training.
However, local right-to-work zones could run into a different test, specifically whether the federal National Labor Relations Act (NLRA) entirely torpedoes any attempt by a local government to act on the question, whether home rule or no.
"It comes down to a three-part analysis," said Schlossberg. "Is it a matter of statewide concern, and if not pre-empted by state law, then should it be allowed?"
"Otherwise it is a labor law question, and could be pre-empted by federal law," she added.
The federal law was enacted in 1935 with provisions protecting the right and ability of individuals to collectively bargain, but changed 12 years later when states were given the right to decide to opt-out of some of those provisions.
But the law specifically names "states and territories" as the jurisdictions charged with crafting legislation opting out of the provisions.
During the March oral arguments, Seventh Circuit Chief Judge Diane Wood noted applying a theory of delegated home rule powers could create “a system of massive chaos” and could “destroy a national system of labor relations.”
A decision from the appeals panel is expected this summer.
"We cannot predict how the Seventh Circuit will rule, but if in favor of Lincolnshire, that will encourage other municipalities to enact their own ordinances," Huebert said.