Right-to-Work Laws

By Ray
Photo credit: Allana

What are right-to-work laws?

Right-to-work laws do not actually grant a right for anyone to work at any particular job, or for any particular employer. They do not grant an actual legal right to work. Instead, right-to-work laws mandate that employers cannot reject applicants based on union membership (or lack thereof).  A potential employee cannot be required to pay union dues before being employed, and employees cannot be mandated to pay union dues. An employee can request to pay union dues via their paycheck, but will need to fill out paperwork authorizing said deduction; thus, this deduction requires employees to opt-in of their own accord.

Right-to-work laws also prohibit union shops & agency shops.  In a union shop, union membership is required after a certain period of employment at the shop. In an agency shop, the union serves as the bargaining agent for the employed workers collectively (thus becoming the collective bargaining agent), and the employees working at the shop pay some kind of fee to cover collective bargaining expenses, even if those workers aren’t members of the union.  In the Twin Cities, one example of a union shop is the Minnesota Opera shop, which requires a non-union member to become a member within a month of starting full-time employment. An example of an agency shop would be the Jungle Theater, which does not require union membership, but 4% of income earned by stagehands is due to the union for being the collective bargaining agent.

 Right-to-work laws do not prevent unions from existing in the states that have those laws, nor do they prevent collective bargaining – but those same laws add significant obstacles to doing so.

Are right-to-work laws just another name for “at-will employment”?

No.  At-will employment means that either the employee or the employer can end the working relationship at any time, for any legal cause or even for ‘no cause’.  For example, an employer could tell any employee that they are no longer working for the employer effective immediately, without being required to give a reason.  The employee could likewise choose to stop working for the employer effective immediately, without giving any advance notice or reason. The employer’s cause for discontinuing employment cannot be retaliatory; it also cannot be based on a legally protected classification, such as being disabled or ethnic background (amongst others).

By comparison, right-to-work is only concerned with employment requirements regarding unions and/or collective bargaining.  In short, right-to-work concerns becoming employed and during employment, whereas at-will employment concerns termination of employment.

The United States is a predominantly at-will employment nation, in contrast to most other first-world nations.  Montana is the only state that legally establishes a “just cause” requirement for terminating employment. Without a contract or other binding legal document, at-will employment is assumed in the other 49 states.

Is there a federal right-to-work law?

No, not precisely.  The federal Taft-Hartley Act of 1947 is often mentioned, but the act itself is not a right-to-work law.  The Taft-Hartley Act did prohibit closed shops, where union membership is required before being allowed to join, but it does not prohibit union or agency shops.  However, the act does stipulate that states are allowed to pass laws to prohibit union & agency shops.  These state laws are now referred to as right-to-work laws.

What states have right-to-work laws?

The following states have enacted “right-to-work” laws.  An asterisk denotes a state that has amended their state constitution to incorporate these same provisions, which will make altering those provisions considerably more difficult).

AlabamaKentuckySouth Carolina
Arizona*LouisianaSouth Dakota
Arkansas*MichiganTennessee
Florida*Mississippi*Texas
GeorgiaNebraska*Utah
IdahoNevadaVirginia
IndianaNorth CarolinaWest Virginia
IowaNorth DakotaWisconsin
Kansas*Oklahoma*Wyoming

What is the effect of right-to-work laws?

This is a hotly debated question.  Those in favor of right-to-work laws cite two particular freedoms.  The first is: greater freedom for individuals to represent themselves in the employment process.  If a person feels that the collective bargaining agent is not representing their interests well, they would have the option of negotiating their own employment terms outside of the union.  

The second is: the freedom from paying dues to unions unless the individual specifically wishes to do so.  Depending on the amount of union membership dues and the value of the work assessment taken out of union members’ paychecks, these dues/assessments can be a significant sum.

Those opposed to right-to-work laws have three major complaints. The first is: a great weakening of union power when bargaining.  A union that has a higher percentage of employees as members is in a stronger negotiating position that a union with a low percentage of member employees.  

The second is: ‘freeloading’ by non-union members on union gains.  If the union is the exclusive collective bargaining agent, they are obligated to negotiate for all applicable employees, whether union members or not; this is known as the duty of fair representation.  This applies not only to contract negotiations, but also grievance proceedings.  Members who pay union dues may be resentful of their non-union fellow workers who are getting the same union benefits (and drawbacks), without paying anything towards those benefits and costs.

The third major complaint is: a reduction of income to the union.  Since a union relies heavily on membership dues and employment fees for their funding, a reduction in union members AND non-members paying employment fees affects both the dues and fees directly.  Significantly reduced funding can limit the training initiatives that the union may offer, and will likely limit any political lobbying for laws favorable to union employees.

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