For nearly fifty years, the debate over “right-to-work” laws had largely been considered settled. The concept was popular in the south, where a number of states have had right-to-work-laws on the books since before the 1960’s, but had gained little traction elsewhere. Though all states were free to pass laws adopting right-to-work, few states outside this initial core group did so. In fact, between 1963 and 2012, only two additional states (Idaho in 1985 and Oklahoma in 2001) enacted right-to-work.
The last five years, however, have seen an explosion in right-to-work laws that shows no sign of slowing down.
As a refresher, “right-to-work” laws make it illegal for employers and unions to require that employees contribute to the union as a condition of employment. In states with no right-to-work law, unionized employers may be required to terminate employees who refuse to pay union dues. Union advocates argue that mandatory dues prevent the “free rider” problem – employees reaping the benefits of having a union, without having to pay the costs. Opponents argue that right-to-work laws protect employees from having to financially support organizations they personally oppose and that these laws require unions to demonstrate to reluctant employees that the cost of membership is worth the benefits.
In the last five years, right-to-work supporters have found fertile ground throughout much of the country. Historically, right-to-work laws were mostly found in politically conservative states, but recently, both “purple” states and states with strong historic union ties have enacted right-to-work. Since 2012, Indiana, Michigan, Wisconsin, West Virginia, Kentucky, and Missouri have all passed right-to- work provisions. (Note that Missouri’s law does not go into effect until Aug. 28, 2017, and opponents are attempting to gather enough signatures for a referendum to undo the law.) With these most recent adoptions, 28 states – totaling 52% of the nation’s population – now live in right-to-work jurisdictions. This is up from just 22 states and 41% of the population in 2011.
Right-to-work is advancing on other fronts as well. Nationally, House Republicans have introduced the National Right-to-Work Act, which would repeal federal labor law provisions that permit firing workers who refuse to pay union dues. While the GOP has introduced similar bills in past years, this is the first time that they have done so with control of the White House and both houses of Congress. President Trump’s administration has signaled support for the legislation.
Even on the local level, elected officials have been active in pushing for right-to-work. In Kentucky, before the state right-to-work law passed earlier this year, twelve counties passed some form of right- to-work provisions. Those bills were upheld as lawful by the Sixth Circuit Court of Appeals late last year. On the other hand, a district court judge ruled against an Illinois village’s right-to-work law last month. That decision is on appeal to the Seventh Circuit Court of Appeals.
However the Seventh Circuit rules, it is clear that unions and their supporters are on the defensive against right-to-work. Time will tell whether the last five years represent the peak of right-to- work measures or just the tip of the iceberg.
This article originally appeared on the Foley & Lardner website. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.
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