right to work law
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In the context of
labor law in the United States United States labor law sets the rights and duties for employees, labor unions, and employers in the United States. Labor law's basic aim is to remedy the "inequality of bargaining power" between employees and employers, especially employers "orga ...
, the term "right-to-work laws" refers to state laws that prohibit
union security agreement A union security agreement is a contractual agreement, usually part of a union collective bargaining agreement, in which an employer and a trade or labor union agree on the extent to which the union may compel employees to join the union, and/or w ...
s between employers and
labor unions A trade union (labor union in American English), often simply referred to as a union, is an organization of workers intent on "maintaining or improving the conditions of their employment", ch. I such as attaining better wages and benefits (su ...
which require employees who are not union members to contribute to the costs of union representation. Unlike the
right to work The right to work is the concept that people have a human right to work, or engage in productive employment, and should not be prevented from doing so. The right to work is enshrined in the Universal Declaration of Human Rights and recognized ...
definition as a
human right Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hum ...
in
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
, U.S. right-to-work laws do not aim to provide a general guarantee of employment to people seeking work but rather guarantee an employee's choice of being a member of and financially supporting collective bargaining organizations (i.e.
labor unions A trade union (labor union in American English), often simply referred to as a union, is an organization of workers intent on "maintaining or improving the conditions of their employment", ch. I such as attaining better wages and benefits (su ...
). The 1947 federal
Taft–Hartley Act The Labor Management Relations Act of 1947, better known as the Taft–Hartley Act, is a Law of the United States, United States federal law that restricts the activities and power of trade union, labor unions. It was enacted by the 80th United S ...
governing private sector employment prohibits the "closed shop" in which employees are required to be members of a union as a condition of employment, but allows the union shop or "agency shop" in which employees pay a fee for the cost of representation without joining the union. Individual U.S. states set their own policies for state and local government employees (i.e. public sector employees). Twenty-eight states have right-to-work policies (either by statutes or by
constitutional A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these prin ...
provision). In 2018, the U.S. Supreme Court ruled that agency shop arrangements for public sector employees were unconstitutional in the case '' Janus v. AFSCME''.


History


Origins

The original use of the term ''
right to work The right to work is the concept that people have a human right to work, or engage in productive employment, and should not be prevented from doing so. The right to work is enshrined in the Universal Declaration of Human Rights and recognized ...
'' was coined by French socialist leader
Louis Blanc Louis Jean Joseph Charles Blanc (; ; 29 October 1811 – 6 December 1882) was a French politician and historian. A socialist who favored reforms, he called for the creation of cooperatives in order to guarantee employment for the urban poor. Alt ...
before 1848. According to the
American Enterprise Institute The American Enterprise Institute for Public Policy Research, known simply as the American Enterprise Institute (AEI), is a center-right Washington, D.C.–based think tank that researches government, politics, economics, and social welfare. A ...
, the modern usage of the term "right to work" was coined by '' Dallas Morning News'' editorial writer William Ruggles in 1941. According to ''
PandoDaily PandoDaily, or simply Pando, was a web publication offering technology news, analysis, and commentary, with a focus on Silicon Valley and startup companies. History PandoDaily was started by former TechCrunch writer Sarah Lacy on January 16, 201 ...
'', the modern term was coined by Vance Muse, a Republican Party operative who headed the Christian American Association, an early right-to-work advocacy group, to replace the term "American Plan" after it became associated with the anti-union violence of the
First Red Scare The First Red Scare was a period during the early 20th-century history of the United States marked by a widespread fear of far-left movements, including Bolshevism and anarchism, due to real and imagined events; real events included the R ...
. Muse used racial segregationist arguments in advocating for anti-union laws. According to ''Slate (magazine), Slate'', right-to-work laws are derived from legislation forbidding unions from forcing strikes on workers, as well as from legal principles such as freedom of contract, which sought to prevent passage of laws regulating workplace conditions.


Wagner Act (1935)

The National Labor Relations Act, generally known as the Wagner Act, was passed in 1935 as part of President Franklin D. Roosevelt's "Second New Deal". Among other things, the act provided that a company could lawfully agree to be any of the following: * A closed shop, in which employees must be members of the union as a condition of employment. Under a closed shop, an employee who ceased being a member of the union for whatever reason, from failure to pay dues to expulsion from the union as an internal disciplinary punishment, was required to be fired even if the employee did not violate any of the employer's rules. * A union shop, which allows for hiring non-union employees, provided that the employees then join the union within a certain period. * An agency shop, in which employees must pay the equivalent of the cost of union representation, but need not formally join the union. * An open shop, in which an employee cannot be compelled to join or pay the equivalent of dues to a union or be fired for joining the union. The act tasked the National Labor Relations Board, which had existed since 1933, with overseeing the rules.


Taft–Hartley Act (1947)

In 1947, the U.S. Congress passed the Labor Management Relations Act of 1947, generally known as the Taft–Hartley Act, over President Harry S. Truman's veto. The act repealed some parts of the Wagner Act, including outlawing the closed shop. Section 14(b) of the Taft–Hartley Act also authorizes individual states (but not local governments, such as cities or counties) to outlaw the union shop and agency shop for employees working in their jurisdictions. Any state law that outlaws such arrangements is known as a ''right-to-work state''.


Current status

The federal government operates under open shop rules nationwide, but many of its employees are represented by unions. Unions that represent professional athletes have written contracts that include particular representation provisions (such as in the National Football League), but their application is limited to "wherever and whenever legal," as the Supreme Court has clearly held that the application of a right-to-work law is determined by the employee's "predominant job situs." Players on professional sports teams in states with right-to-work laws are thus subject to those laws and cannot be required to pay any portion of union dues as a condition of continued employment.


Arguments for and against


Rights of dissenting minority and due process

The first arguments concerning the right to work centered on the rights of a dissenting minority with respect to an opposing majoritarian collective bargain. President Franklin Roosevelt's New Deal had prompted many U.S. Supreme Court challenges, including those regarding the constitutionality of the National Industry Recovery Act (NIRA) of 1933. In 1936, as a part of its ruling in ''Carter v. Carter Coal Co.'' the Court ruled against mandatory collective bargaining, stating:
The effect, in respect to wages and hours, is to subject the dissentient minority ... to the will of the stated majority . ... To 'accept' in these circumstances, is not to exercise a choice, but to surrender to force. The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body ... but to private persons . ... [A] statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment of the United States Constitution, Fifth Amendment, that it is unnecessary to do more than refer to decisions of this Court which foreclose the question.


Freedom of association

Besides the Supreme Court, other proponents of right-to-work laws also point to the U.S. Constitution and the right to freedom of association. They argue that workers should both be free to join unions or to refrain, and thus, sometimes refer to states without right-to-work laws as forced unionism states. These proponents argue that by being forced into a collective bargain, what the majoritarian unions call a fair share of collective bargaining costs, is actually financial coercion and a violation of freedom of choice. An opponent to the union bargain is forced to financially support an organization for which they did not vote in order to receive monopoly representation for which they have no choice. The Seventh-day Adventist Church discourages the joining of unions, citing the writings of Ellen G. White, Ellen White, one of the church's founders, and what writer Diana Justice calls the "loss of free will" that occurs when a person joins a labor union.


Unfairness

Proponents such as the Mackinac Center for Public Policy contend that it is unfair that unions can require new and existing employees to either join the union or pay fees for collective bargaining expenses as a condition of employment under
union security agreement A union security agreement is a contractual agreement, usually part of a union collective bargaining agreement, in which an employer and a trade or labor union agree on the extent to which the union may compel employees to join the union, and/or w ...
contracts. Other proponents contend that unions may still be needed in new and growing sectors of the economy, for example the voluntary and third party sectors, to assure adequate benefits for new immigrant, part-time aides such as the direct support professional workforce.


Political contributions

Right-to-work proponents, including the Center for Union Facts, contend that political contributions made by unions are not representative of the union workers. The agency shop portion of this had previously been contested with support of National Right to Work Legal Defense Foundation in ''Communications Workers of America v. Beck'', resulting in "Beck rights" preventing agency fees from being used for expenses outside of collective bargaining if the non-union worker notifies the union of their objection. The right to challenge the fees must include the right to have it heard by an impartial fact finder.
Chicago Local Teachers Union v Hudson 475 U.S. 292. 310 (1986)
''Beck'' applies only to unions in the private sector, given agency fees were struck down for public-sector unions in '' Janus v. AFSCME'' in 2018.


Free riders

Opponents, such as Richard Kahlenberg,"The South Carolina Governance Project — Interest Groups in South Carolina,"
''Center for Governmental Services, Institute for Public Service and Policy Research, University of South Carolina'', Accessed July 6, 2007.
have argued that right-to-work laws simply "gives employees the right to be Free-rider problem, free riders—to benefit from collective bargaining without paying for it." Benefits the dissenting union members would receive despite not paying dues also include representation during arbitration proceedings. In ''Abood v. Detroit Board of Education, Abood v. Detroit BoE'', the Supreme Court of the United States permitted public-sector unions to charge non-members Agency shop, agency fees so that employees in the public sector could be required to pay for the costs of representation, even as they opted not to be a member, as long as these fees are not spent on the union's political or ideological agenda. This decision was reversed, however, in '' Janus v. AFSCME'', with the Supreme Court ruling that such fees violate the First Amendment to the United States Constitution, First Amendment in the case of public-sector unions, as all bargaining by a public-sector union can be considered political activity.


Freedom of contract and association

Opponents argue that right-to-work laws restrict freedom of association, and limit the sorts of agreements that individuals acting collectively can make with their employer by prohibiting workers and employers from agreeing to contracts that include fair share fees. They also argue that American law imposes a duty of fair representation on unions, so non-members in right-to-work states can force unions to provide grievance services without compensation that are paid by union members. Kahlenberg and Marvit also argue that, at least in efforts to pass a right-to-work law in Michigan, excluding police and firefighter unions—traditionally less hostile to Republicans—from the law caused some to question claims that the law was simply an effort to improve Michigan's businesses climate, not to seek partisan advantage. In December 2012, Libertarianism in the United States, libertarian writer J. D. Tuccille wrote in ''Reason (magazine), Reason'': "I consider the restrictions right-to-work laws impose on bargaining between unions and businesses to violate freedom of contract and Freedom of association, association. ... I'm disappointed that the state has, once again, inserted itself into the marketplace to place its thumb on the scale in the never-ending game of playing business and labor off against one another. ... This is not to say that unions are always good. It means that, when the state isn't involved, they're private organizations that can offer value to their members."


Studies of economic effect

According to Tim Bartik of the W. E. Upjohn Institute for Employment Research, many studies of the effect of right-to-work laws exist but are inconsistent. Studies have found both "some positive effect on job growth" and no effect. A 2019 paper in the ''American Economic Review'' by economists from MIT, Stanford, and the U.S. Census Bureau, which surveyed 35,000 U.S. manufacturing plants, found that "the business environment, as measured by right-to-work laws, boosts incentive management practices." According to a 2020 study published in the ''American Journal of Sociology'', right-to-work laws lead to greater economic inequality by indirectly reducing the power of labor unions. Looking at the growth of states in the Southeast following World War II, Bartik says that while these states have right-to-work laws, they have also benefited from "factors like the widespread use of air conditioning and different modes of transportation that helped decentralize manufacturing." Economist Thomas Holmes argues that it is difficult to analyze right-to-work laws by comparing states because of other similarities between states that have passed these laws. For instance, right-to-work states often have some strong pro-business policies, making it difficult to isolate the effect of right-to-work laws. Holmes compared counties close to the border between states with and without right-to-work laws, thereby holding constant an array of factors related to geography and climate. He found that the cumulative growth of employment in manufacturing in the right-to-work states was 26% greater than that in the non-right-to-work states. Given the study design, Holmes writes that "my results do not say that it is right-to-work laws that matter, but rather that the 'pro-business package' offered by right-to-work states seems to matter." Moreover, as noted by Kevin Drum and others, this result may reflect business relocation rather than an overall enhancement of economic growth since, as Drum writes, "businesses prefer locating in states where costs are low and rules are lax".


Polling

In January 2012, in the immediate aftermath of passage of Indiana's right-to-work law, a Rasmussen Reports telephone survey found that 74% of likely voters disagreed with the question "Should workers who do not belong to a union be required by law to pay union dues if the company they work for is unionized?" but found that "most also don't think a non-union worker should enjoy benefits negotiated by the union." In January through March 2013, 43% of those polled believed that the law would help Michigan's economy, while 41% believed that it would hurt.


Political support

In 2012, President Barack Obama opposed right-to-work legislation in Michigan. In 2017, Republican members of Congress introduced legislation for a national right-to-work law.


U.S. states with right-to-work laws

The following 27 states have right-to-work laws: The territory of Guam also has right-to-work laws. Ohio allows employees to opt out from joining a union, but unions are allowed to charge a typically smaller fee for employees that opted out.


Local or repealed laws

Some states had right-to-work laws in the past, but repealed them or had them declared invalid. There are also some counties and municipalities located in states without right-to-work laws that have passed local laws to ban union security agreements.


Delaware

Seaford, Delaware, Seaford passed a right-to-work ordinance in 2018.


Illinois

Lincolnshire, Illinois, Lincolnshire passed a local right-to-work ordinance, but it was struck down by the U.S. Seventh Circuit Court of Appeals. An appeal to the U.S. Supreme Court resulted in the case being Vacated judgment, vacated as being Mootness, moot because in the intervening period Illinois had passed the Illinois Collective Bargaining Freedom Act to invalidate such local ordinances. In a 2022 referendum, voters in Illinois approved a state constitutional amendment establishing a right to collective bargaining. The amendment also prevents any future state legislature or local government from passing a right-to-work law.


Indiana

Before its passage in 2012, the Republican-controlled Indiana General Assembly passed a right-to-work bill in 1957, which led to the Democratic takeover of Indiana's Governor's Mansion and General Assembly in the coming elections, and eventually, the new Democrat-controlled legislature repealing the right-to-work law in 1965. Right-to-work was subsequently reenacted in 2012.


Kentucky

On November 18, 2016, the U.S. Sixth Circuit Court of Appeals upheld the right of local governments to enact local right-to-work laws in Kentucky. Kentucky had 12 local ordinances. A statewide law was subsequently enacted in 2017.


Missouri

The Missouri General Assembly, legislature passed a right-to-work bill in 2017, but the law was defeated in a 2018 referendum before it could take effect.


New Hampshire

New Hampshire adopted a right-to-work bill in 1947, but it was repealed in 1949 by the New Hampshire General Court, state legislature and Governor of New Hampshire, governor. In 2017, a proposed right to work bill was defeated in the New Hampshire House of Representatives 200–177. In 2021, the same bill was reintroduced but again defeated in the House of Representatives 199–175.


New Mexico

New Mexico law previously did not explicitly prohibit nor allow mandatory union membership as a condition of employment at the statewide level, thereby leaving it up to local jurisdictions to establish their own right-to-work policies. Several counties, notably Chaves County, New Mexico, Chaves, Eddy County, New Mexico, Eddy, Lea County, New Mexico, Lea, Lincoln County, New Mexico, Lincoln, McKinley County, New Mexico, McKinley, Otero County, New Mexico, Otero, Roosevelt County, New Mexico, Roosevelt, Sandoval County, New Mexico, Sandoval, San Juan County, New Mexico, San Juan, and Sierra County, New Mexico, Sierra counties, in addition to Ruidoso, New Mexico, Ruidoso village adopted such laws. In 2019, the New Mexico Legislature approved legislation that prohibits local right-to-work laws and further states that union membership and the payment of union dues may be required as a condition of employment in workplaces subject to a collective bargaining agreement; it was signed by governor Michelle Lujan Grisham. In 2020, New Mexico's legislature passed House Bill 364 that authorizes and promotes the use of card check protocols for workers considering organizing into a labor union. New Mexico does not currently require Project Labor Agreements for state-sponsored projects, but some local jurisdictions (notably Bernalillo County and the Albuquerque, New Mexico, City of Albuquerque) have ordinances in place requiring Project Labor Agreements for locally-sponsored projects that exceed specified dollar-value thresholds.Albuquerque Code of Ordinances §5-5-11 (H) Project Labor Agreements, Retrieved April 4, 2022
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See also

* At-will employment * Labor unions in the United States * Union affiliation by U.S. state * United States labor law


References


Further reading

*


External links


Opposed to right-to-work laws


Wisconsin Contractor Coalition


Supported right-to-work laws


Wisconsin Manufacturers and Commerce

Michigan Chamber of Commerce

National Right to Work Committee

National Right to Work Legal Defense Fund
{{DEFAULTSORT:Right-To-Work Law United States labor law Labor relations in the United States Right to work Trade union law