Illinois Attorney General’s Actions Bring Worker Classification to Forefront Labor Day Weekend

Written by John Lopez

This article continues addressing a ballot measure that Illinois voters must vote on this election cycle.
We urge voters to reject Amendment 1, a constitutional amendment that
would elevate collective bargaining rights in the Illinois Constitution,
allowing government union contracts to override state law.

Note from John Lopez:  With developments late Thursday, September 1, with Illinois Attorney General Kwame Raoul (D) filing a civil suit against Drive Construction for violating Illinois laws, including the Illinois Employee Classification Act, this article will continue discussing Amendment 1’s hidden agenda, while on the surface is collective bargaining, but in reality Worker Classification will be implemented.  This article will also share how Illinois’ attorney general has supported Worker Classification laws utilizing the ABC test over the past 13 months.

Kwame Raoul

Late Thursday afternoon, Illinois Attorney General Kwame Raoul‘s (D) office filed civil litigation in Cook County Court against defendants, both businesses and individuals, involving an alleged plan violating several Illinois laws in an elaborate scheme, including the Minimum Wage Law, the Prevailing Wage Act and the Employee Classification Act (ECA).

The attorney general’s office worked closely with the Mid-America Carpenters Regional Council, which has a collective bargaining agreement with Drive Construction, Inc.

The state presented this graphic as part of its 51-page Cause of Action, which can be viewed in its entirety here.

From Illinois Attorney General filing 9/1/22

Given the recent article published on Illinois Family Action on Thursday brought up the ECA, which as the September 1 article was clear to point out only applies to the construction industry, and the Illinois attorney general’s actions, I want to be very clear concerning the allegations filed in the complaint in Thursday afternoon’s lawsuit:

“While I am opposed to Amendment 1 and have published the hidden agenda of proponents including Illinois Economic Policy Institute goal of adopting the California Assembly Bill 5 law and its detrimental impacts on lawful 1099 independent contractors here in Illinois, I’m not blind there are bad actors in both businesses, labor unions and within the government.

“As I continue, through my work at Illinois Family Action and other opponents to oppose Amendment 1, I want to make very clear ANY bad actors violating the Illinois Employee Classification Act or any other applicable law should be held accountable under both state and federal law.”  — John Lopez, Illinois Family Action 9/2/22

Here’s brief synopsis of the previous articles to oppose Amendment 1.  For reference, here’s the wording of the Amendment on the ballot on November 8 with emphasis added:

Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and 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, 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.”

Couple with the “employees” reference, per Illinois Senator Ram Villivalam (D-Chicago):

“The Amendment refers to ‘employees,’ and not workers or individuals…done with intention.”

Now what did Villivalam mean when he said, “done with intention”?

State Senator Villivalam’s reference appeared last week in The Wall Street Journal editorial concerning Amendment 1, published in the August 30, 2022 print edition.  Here’s additional context:

“The National Labor Relations Act already governs private workers and limits who can bargain about what.  Illinois can’t expand the collective-bargaining rights of private employees beyond what federal law allows.”

While the Journal accurate about the National Labor Relations Act (NLRA) limits governance of private workers and who can bargain for what, something missed was the definition, or “classification” of workers is done at the state level, and the emphasis on any discussion about labor law and the definition of an “employee” can be expanded by state governments, just as was passed in California three years ago this month with Assembly Bill 5 (AB5).

The “done with intention” more proof of the hidden agenda proponents of Amendment 1 trying to do in Illinois.

As covered last week, the worker classification test applied to California’s AB5 law is the ABC test, and for reference, here is the three-prong ABC test a worker under AB5 must pass to be classified an independent contractor:

  1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

  2. The worker performs work that is outside the usual course of the hiring entity’s business; and

  3. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Current Illinois law, outside of the construction industry as well as workers and unemployment compensation, uses the “common law test”, which is used by the IRS, and sometimes referred to as the “IRS test” for worker classification in Illinois.

Why is implementing the ABC test vital to fulfill Amendment 1’s goal for collective bargaining?  Because under current Federal law, only a duly classified employee for tax status can be covered under the NLRA, including collective bargaining.  Independent contractors cannot take part in union organizing or be covered under a collective bargaining agreement.

Why do proponents not mention Worker Classification? Because they are trying to pass Amendment 1, and if voters approve the November 8 ballot measure, eligible workers for collective bargaining will be increased, armed with the amended Illinois Constitution, to expand eligible workers for union membership, be it in public sector or the private sector, through an expanded Worker Classification law possibly copying California’s AB5 Law use of the ABC test.

The first hearing on the lawsuit filed on September 1 against Drive Construction, et al is December 30, 2022, and if the case goes to trial, sometime in 2023 at the earliest.  If Amendment 1 is approved on November 8, could the Drive Construction case be the same as the Dynamex decision in California in 2018, as discussed in last Thursday’s article resulted in the AB5 Law?

Could the AB5 Law be national by next year?

AB5 Going National and Kwame Raoul’s Support for ABC Test in Worker Classification

As stated above, “current” Federal law, namely the NLRA as well as the Fair Labor Standards Act (FLSA) does not include the ABC test for Worker Classification.

Immediately after California Governor Gavin Newsom (D) signed AB5 into law on September 18, 2019, the ABC test from AB5 was copy-and-pasted into a congressional bill known as the “Protecting the Right to Organize (PRO) Act”, per Red State Editor-at-Large Kira Davis published in mid January of 2020, with emphasis added:

Kira Davis

“H.R.2474 – benignly titled ‘The PRO Act’ was originally drafted in May of 2019 as a union-strengthening bill.

“In its infancy it had nothing to do with independent contractors and everything to do with thwarting the Janus decision.

“On its face the bill is a complete disaster and could have chilling repercussions for employers and small-business, including stripping employers of their ability to stay open during union strikes. If the only thing this bill pertained to were mediation and strike rules, it would be terrifying enough. We should all be amazed that the business community and Congress have allowed this to fly under the radar since last May.

“But this is government and with government there is never enough. Somewhere between September of 2019 and December of 2019 someone added an amendment to the behemoth employer-rights killer that was a simple copy and paste of California’s AB5. In fact, it is so awkwardly jammed into the text that it can be nothing other than a literal copy and paste.

The PRO Act, during the 116th Congress passed the U.S. House in early February of 2020, but the then-Republican U.S. Senate took no action on the PRO Act, and then President Trump had no intention of signing the PRO Act into law even if it did pass the Senate.

After Democrats flipped the White House and the Senate in 2020, the new 117th Congress took up the PRO Act and in just over a month, the House passed the PRO Act again:

From California Target Book

The ABC test definitely embedded in the PRO Act, along with other provisions including the elimination of right-to-work state laws.

Union proponents of the PRO Act, through their shills, like to say independent contractors have nothing to worry about with the PRO Act passed in the House because the scope of the bill is only for “union organizing”, and indeed, an amendment to the PRO Act last year during House debate was passed to ensure state laws are not superseded by the Worker Classification component in the PRO Act.

Being discerning, opponents of the PRO Act (and the author has been fighting this bill over 2 years) know once the ABC test is enshrined in Federal law, then political pressure from unions will want the ABC test enshrined in the FLSA.  Indeed, such a bill was introduced in late September of 2020 amending the FLSA with the ABC test, and this bill went nowhere.

Once the House-passed PRO Act arrived in the Senate in March of 2021, U.S. Senate Majority Leader Chuck Schumer (D-NY) stated he will not bring the PRO Act for a floor vote until at least 50 cosponsors sign-off on the legislation, through cosponsorship of the Senate version of the PRO Act under S. 420.

Since April of 2021, only 47 senators in the Democratic majority have cosponsored the PRO Act.  The three Democratic hold-outs are:

  • Mark Kelly (AZ)
  • Kyrsten Sinema (AZ)
  • Mark Warner (VA)

Mark Warner

Of the three, only U.S. Senator Mark Warner has publicly expressed why he has not signed-on to cosponsor the PRO Act, from a May 3, 2021 media conference call, summarized by the progressive-leaning Blue Virginia:

“On the PRO Act, Sen. Warner…said he supports ‘the vast majority’ of the PRO Act, including the right for workers to organize.  So ‘there’s a lot to like in the PRO Act.’

“But, he added, ‘what I want to get to is how can we make some of the areas where I’d like to see some corrections, so that this very expansive piece of legislation could be supported on the floor.’  One area he specifically mentioned was ‘the changing nature of work,’ from people staying with companies for many years (and with long-term benefits) to more of a ‘gig economy’ where people have a variety of jobs over time.

“The problem with the PRO Act, Sen. Warner argues, is that it ‘tries to fit all work into kind of a 20th century, classic W2 employment status,’ because ‘we’re not going ‘to return to a 1980s type of economy.’ 

So…he looks forward to incorporating these elements so he can support the PRO Act as a whole.”

U.S. Senator Warner must be credited for opening up on the specifics why he’s yet to cosponsor the PRO Act since it passed the U.S. House, now nearly a year and a half ago (March 9, 2021).  Warner is right, the “classic W2 employment status” through the 20th century is not coming back and through this writing, Warner has still yet to cosponsor the PRO Act.

The 5-minute segment where Warner opens up about the PRO Act can be viewed in the cued video here.

Thoughtful leaders take holistic views of legislation and Warner recognizes how the PRO Act will drametically change the American work place in all of the United States and its territories, and why he wants significant changes made to the House-passed PRO Act bill before signing off.

Kwame Raoul

Contrast Warner’s approach to IL Attorney General Kwame Raoul’s cosigned support for the PRO Act sent to U.S. Senate leadership in Washington through California Attorney General Rob Bonta (D) in August of 2021:

“Today, just 12 percent of American workers are represented by a union—down from 27 percent in 1979.  And this decline in union membership has contributed significantly to a historic rise in income inequality.  Despite rising labor productivity, median earnings have barely budged upwards over the past four decades.

“This dramatic decline in union membership is no accident. It tracks the rise in corporate opposition to organizing and aggressive anti-union campaigns. Indeed, these campaigns, which often spare no cost, seek to intimidate workers and often falsely imply that unionization will lead to mass layoffs or the closure of the workplace. And they employ a wide range of other pernicious tactics. To combat union drives, employers routinely enforce disciplinary rules with more frequency against pro-union workers, engage in pretextual retaliatory firings, interfere with union elections, hire union-busters, employ delay tactics, and impart misleading information via mandatory captive-audience meetings.  Compounding this range of problems, the penalties for such unlawful tactics are insufficient to provide a serious economic disincentive. Unsurprisingly, one out of five union election campaigns involves a charge that a worker was illegally fired for union activity.”

Clearly, Raoul and the other states attorneys general took the union talking point view in their letter to support the PRO Act.  Nowhere in the 3 pages of text from the August 2021 letter did Raoul or his counterparts mention Worker Classification, even in the context for union organizing, but the ABC test is embedded in the text of the PRO Act.

Very similar to Amendment 1, Worker Classification not mentioned directly in Raoul’s support for the PRO Act, but the “employees” and state Senator Villivalam’s intention to not use the term “worker” or “individual” in Amendment 1 deliberate indication of the hidden agenda by not only proponents of Amendment 1, but by proponents of the PRO Act.

Does everyone see a pattern here?

Whether the PRO Act, as passed in the House will pass the Senate by the end of the 117th Congress grows more problematic by the day.

But earlier this year, Raoul spoke out with his state attorneys general counterparts in an amicus brief to the National Labor Relations Board (NLRB) Case # 10–RC–276292 with the following quote from the cosigners:

“…while no single factor will always be decisive, several…especially three which are key to the so-called ‘ABC’ test enacted by many States to distinguish employees from independent contractors for statutory purposes, will typically be a better starting-point for analysis

“The need for robust protections against independent contractor misclassification is especially urgent now, with the steep decline in union membership and the sharp rise in misclassification across our States and the nation.”

Again, clearly union talking points and discernment urgently needed with the above.  A footnote on the same page says “…over 26 States employ variations of the ‘ABC’ test…”

That statement is not even a half-truth.  The bulk of the 26 states use the ABC test for unemployment and workers compensation.  The key use, “tax status”, or can a worker legally work, there are only 2 states where tax status determined by ABC test for significant number of workers — California and Massachusetts.

This constant minimizing/downplaying the impact of the ABC test to Worker Classification, and the real threat to every Illinoisians God-given freedom to provide for themselves and their family through labor, just adds more risk why Amendment 1 a real threat to freedom to provide for one’s family.

More reason to vote “NO” on Amendment 1 this fall, because if our leaders will minimize/downplay a real threat, the risk too great to take.

Note from John Lopez:  The Illinois Economic Policy Institute tweeted a reply to me labeling my linkage of Amendment 1 to Worker Classification as “Misinformation”.  After support from friends and fellow freelancers, the ILEPI deleted their tweet, but enough people saw it, and moving forward, I will be screen capturing all hostile tweets on this topic.

Feature photo credit The Bridge of Khazad-dûm, Lord of the Rings: The Fellowship of the Ring produced by New Line Cinema, co-produced by Wingnut Films, 2001, with additions by John Lopez, Policy Political Consulting

John Lopez has written about policy and elections through the McHenry County Blog since 2019 through July 2021.  He is now semi-retired, and does freelance work with analytics, as well as political candidates, emphasizing policy as the means to advance the conservative message, by engaging through policy “dog fighting”, applying discernment for winning and advancing God’s Kingdom agenda.

John’s known for getting past the talking points, the narratives, the abstracts, the platitudes and the bromides in order to discuss policy and apply Scripture to overcome unholy divisions in the local community, our state, and nation.  John has been married for over 17 years.

Follow John on Twitter: @MarcVAvelar