On June 9, 2023, Illinois Governor J. B. Pritzker signed into law HB 2907 and HB 3396, amending the Illinois Labor Disputes Act (“Act”) to expand protections for striking workers. The new law restricts defensive measures available to employers affected by picket activity. Specifically, HB 2907 limits the amount an employer can recover for damages it suffers as a result of a labor dispute. HB 3396 makes it a Class A misdemeanor with a minimum fine of $500 to place any object in the public way with the intent of interfering with, obstructing, or impeding a picket or other demonstration or protest.  The amendments are slated to take effect on January 1, 2024.

Currently the Act prohibits Illinois courts from enjoining peaceful picketers who are “recommending, advising, or persuading others” to cease work.¹ The Act has provided broad protection for peaceful picketers since its enactment. For example, it provides access to most employer locations by defining the public right of way as the “portion of the highway or street adjacent to the roadway for accommodating stopped vehicles or for emergency use; or that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines.”² Picketers are permitted to erect temporary signs, park between one and ten vehicles on the public right of way, and erect tents and other temporary shelter for the “health, welfare, personal safety, and well-being of picketers.”³ The Act expressly preempts any future local government ordinance that imposes “restrictions or limitations on the picketing of an employer in a manner inconsistent with this Act,” and voids any such existing ordinances.⁴

The amendments themselves raise a related question: are they preempted by federal law? Under the Garmon doctrine, the National Labor Relations Act (NLRA) preempts state laws that arguably conflict with the NLRA.⁵ The U. S. Supreme Court recently decided that the NLRA does not preempt a tort claim by an employer against a union asserting that the union intentionally destroyed the employer’s property during a labor dispute.⁶ In the 8-1 decision, the Court reiterated that NLRA protection does not extend to a striker who fails “to take ‘reasonable precautions’ to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work.”⁷

The recent Illinois amendments could be challenged in litigation testing whether they are preempted by the NLRA. Points of attack could include HB 2907’s limitation on an employer’s recoverable damages and HB 3396’s imposition of fines on persons who defend against picketing by placing an object in the public way with the intent of interfering with, obstructing, or impeding a picket or other demonstration or protest. Employers experiencing picketing or strike activity on their property need to understand these new laws and the potential impact of upcoming litigation challenges.