California, Tennessee Legislate Union Activity

Tennessee passed a law requiring secret ballot union elections for employers receiving state funds, while California is pushing to enshrine the right to join a union in its constitution. In essence, the Tennessee law prohibits recognizing a union without an election for employers receiving state funds, while the California measure would prohibit future attempts to make California a right to work state. 

The Employee Free Choice and Privacy Act, passed by both chambers of the Tennessee state legislature, would prohibit employers receiving state funds from recognizing a union solely based on workers’ signed authorization cards (“card check”). Employers would only be allowed to recognize a union on the basis of a NLRB-held secret ballot election. The law, which awaits the governor’s signature, comes as the NLRB itself considers whether to allow card check elections in many more circumstances. 

Meanwhile, California is considering a constitutional amendment that would constitutionally guarantee employees’ rights to join a union and organize and bargain with their employers. The measure would also prohibit future laws that reduce such protections, essentially safeguarding against future attempts to make California a right to work state. 

Increasing state activity in the labor space: The two changes are the latest state forays into labor policy, following a recent constitutional amendment passed in Illinois nearly identical to the California proposal, and a successful effort in Michigan to repeal the state’s right to work law. The Illinois law, the California proposed amendment, and the Tennessee law are all potentially at risk of legal challenge on the basis that such laws are preempted by the National Labor Relations Act, which gives the NLRB exclusive jurisdiction over national labor law and policy. 

Outlook: These new state labor laws are the latest example of increased state activity in the absence of meaningful federal legislation or regulation, with paid leave and pay transparency as other examples. Such laws only contribute to the growing “patchwork quilt” of often conflicting state laws on issues left untouched by federal lawmakers amidst a growing partisan division