Employment Law: Michigan’s Right to Work Law

This is to serve as general education information and is presented to respect both sides of this issue.

What is “Right to Work”?
Right to Work law is the title granted to statutes designed as a means for the state (Michigan or other), to regulate unions in the public or private sector and limit the collective bargaining process. One of the laws functions is to separate the union from the hiring process by disallowing union dues from being a requisite of employment.

Background
In December 2012, the Michigan legislature passed the Right to Work (RTW) law as Public Act 348 and Public Act 349. At that time, Michigan became the 24th state in the United States to pass such legislation. RTW law regulates collective bargaining both in the private and public sector (all state and local government employees included); firefighters and police officers are currently excluded from the Michigan version of the statute. The law became effective on March 28, 2013.

Although preemptive federal labor law generally governs the private sector, in 1947 Congress passed the Taft-Hartley Act, which added section 14(b) to the National Labor Relations Act (NLRA). The Supreme Court has found section 14(b) allows state governments to pass private sector RTW laws. See Retail Clerks v. Schermerhorn, 373 U.S. 746 (1963).

Impact
The Right to Work laws in Michigan make it unlawful for unions to negotiate for and include security clauses in Collective Bargaining Agreements (CBAs). Security clauses are the means by which unions could make paying union dues or agency fees a condition of one’s employment. Any CBA entered into, extended or renewed after the effective date of Michgan’s RTW (March 27, 2013) may not include a security clause. Older CBAs that expired after the effective date were grandfathered in, and may still have proper security clauses.

Union Issues
Without fees as a condition of employment, employees can decide whether or not to pay any dues. If employees do not make union dues payments, they may still receive employee benefits from the union. Michigan has not ruled on this issue yet; and some division exists in other RTW state courts.

Employer Issues
Since this legislation removes the requirements, unions must become more visible to their fellow employees, showing them the value of the union, to retain dues and prevent employees from opting out. Employers should be prepared for more strict negotiations in CBAs. Further, employers should be aware grievances and arbitration might increase in frequency as the union asserts its value.

Current Legal Climate
Right to Work Law in Michigan is no simple matter, and like any change during this highly polarized political climate, it is certainly controversial. And since RTWs inception, there have been legal challenges to the law on various fronts. A challenge is waiting on the Michigan Supreme Court Docket as of today.

It is now, more than ever, essential to be aware of the current law and have a relationship with your legal professionals to answer questions and solve problems before they arise.