Right to work laws are a misleadingly named movement being pushed across the nation. While they may sound like efforts to ensure jobs, they are actually a push to pass laws which undermine the power of unions by allowing employees to opt out of union dues while still requiring unions to provide these opt out employees full rights and protections.
The laws are a product of a federal law from 1947 called the Taft-Hartley Act. The act prohibited employers from running closed shops–agreements where they only hire unionized workers. However, it allowed union shops–agreements where employees are required to join a particular union within a certain period of time after being hired. The act also has a section which allows states to ban union shops as well.
The laws based on this section are right to work laws and are, at this point, exclusively state law. While they vary state to state, they all do essentially the same thing–allow an employee to opt out of paying union dues while still benefitting from union representation. Due to the exclusive bargaining agreements unions provided by the National Labor Relations Board (NLRB), The laws do not apply to federal workers, railroad workers, and airline workers.
A couple of interest groups have been making a particularly hard push for right to work laws, especially in middle America and the south, for the last several years. The laws have seen a hodgepodge of success. However, through repeated attempts to push these rules the state of the law has slowly ratcheted further and further towards right to work despite constitutional challenges to the laws in state and federal courts. As it is, you are already generally allowed to opt out of union political activities and only pay for representation as to your wages and rights in the workplace.
At this point, there are 28 states with some sort of right to work law in place. These states include: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri (passed in 2017 and postponed to this year), Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming, and-of course-Kentucky. This last state has seen its right to work law recently challenged in court. However, just around a week ago the court ruled to dismiss these challenges to the law.
What Does the Kentucky Ruling Say?
The Kentucky court case challenging the constitutionality of the law made an argument we’ve discussed before in the context of right to work laws–they challenged the law as an unconstitutional government taking. A little over a year ago, we talked about a similar Wisconsin case bringing this argument.
We also said it was unlikely argument to succeed. Takings deals with the government taking all or part of property from a private party, either through eminent domain (the government simply laying claim to the property) or through regulation removing all use for the property. Not only does takings generally deal with real property (houses and land and such), making it fairly unsuited to an argument regarding the potential profits from services provided by a union, the 7th Circuit has explicitly considered and rejected the argument of takings when it comes to the constitutionality of right to work laws.
The 7th Circuit ruling argued that unions are compensated for their representation by their government sanctioned exclusive bargaining position with employers. Since the article on the Wisconsin case, the unions have lost their takings based challenges.
The Kentucky argument, brought by Teamsters’ Local 89, made a similar argument to Wisconsin’s. They followed a common line of argument in these sort of cases that the government is taking their private property without compensation by legally forcing them to provide services to people who are not paying members of the union.
However, Kentucky’s arguments went about the same as the Wisconsin case. The Judge on the case ruled that there wasn’t a present property interest on the part of the unions that was being deprived by the government. Instead, the most the unions could argue was a speculative future loss of income. Thus, he dismissed the case. He further dismissed claims of arbitrary government action and equal protection arguments.
This has been the trend in cases like this, there is certainly a property interest that will be lost and the law requires these unions to eat this loss if they want to keep their doors open. However, the common argument courts have made against this is that the unions have a clear recourse–pack up and go home. The unions are put in their position by their own choice, thus undermining the takings argument in the minds of many judges who have ruled on the matter. We’ve seen similar lines of reasoning in right to work cases such as one out of Indiana back in 2014.
Right to Work Across the Country
Right to work laws are an ongoing issue, they continue to be pushed nationwide. The spread of these laws is still ramping up–we may see challenges reach the Supreme Court before too long. The Supreme Court has already heard at least on case on the issue back in 2016. However, the death of Justice Scalia and the failure of conservatives in Congress to allow the appointment of a replacement left the issue in a 4-4 deadlock–as many cases ended during that period.
However, with Justice Gorsuch in place, the Supreme Court will have to address these laws eventually. As it is, the consensus seems to be growing among courts hearing these challenges that they are constitutional laws–despite how much they weaken the unions which protect employee rights. As it is, the makeup of the Supreme Court makes it likely that they will support this trend among the Circuit and state courts.
Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure.