Category Archives: Right-To-Work

The Status of Right-to-Work Laws in Select States

Contributed by Suzannah Overholt, June 25, 2019

Illinois recently enacted a Collective Bargaining Freedom Act which bars local governments from establishing “right-to-work” (“RTW”) laws or zones. This most recent piece of legislation serves as a timely reminder of the differing responses by states to the right-to-work movement. 

Section 14(b) of the National Labor Relations Act (NLRA) gives states the discretion to pass laws limiting the ability of unions to collect dues from non-members, commonly referred to as RTW laws. Critics claim that such laws lower wages and benefits. Supporters argue that RTW laws and zones promote free choice by allowing workers to choose whether to financially support unions or not. 

Gavel on white background

Over the past several years states have passed more regulations addressing this issue, resulting in varying regulations from state to state.  In 2012, Indiana became the 23d state to enact a right-to-work law that stated a person could not require an individual to (1) become or remain a member of a union; (2) pay dues, fees or assessments or other charges to a union; or (3) pay a charity or third party an amount equal to or a pro rata amount of dues, fees, assessments or other charges for a union. Indiana Code 22-6-6-8. The law, codified at Indiana Code 22-6-6, et seq., applies to public and private sector employees and creates a mechanism for filing complaints with the Indiana attorney general, department of labor, or prosecuting attorney of the county in which the individual making the complaint is employed. A knowing violation is a Class A misdemeanor, and an individual who allegedly sustains an injury due to a violation may file a civil action. Indiana’s law has been upheld by both the Indiana Supreme Court  and the Seventh Circuit Court of Appeals.

In 2015, Wisconsin followed in Indiana’s footsteps, passing a law barring mandatory union membership and prohibiting unions or employers from requiring non-members to pay dues.  Wisconsin’s law was also challenged and upheld in both state and federal court.  (The aspect of the law changing the period in which an employee’s authorization for dues deductions is deemed irrevocable was found to be pre-empted by federal law.) The law, codified at Wisconsin Code 111.04, et seq., makes a violation an unfair labor practice.  

As we explained in our prior post, in 2018, the United States Supreme Court weighed in on the issue in Janus v. AFSCME. In that case, the Court overturned a prior Illinois law that required public sector, non-union employees to pay union dues.

llinois’ most recent law, signed in April, prohibits local right-to-work ordinances and imposes penalties for violations.  The law was passed in response to an ordinance passed by the town of Lincolnshire in 2015. Whether local governments may adopt such ordinances is not clear. The Seventh Circuit Court of Appeals struck down the Village of Lincolnshire’s RTW ordinance that prohibited any requirement that private sector workers join a union or compensate a union in order to keep their job in a unionized workforce or that employees be recommended, approved, referred or cleared for employment by or through a union. The Lincolnshire ordinance was headed to the Supreme Court for review, but the Court has now declined to hear the case.  

Like Illinois, Missouri has taken action against right-to-work measures.  In 2017, Missouri’s legislature passed a bill that would have allowed private sector workers to opt out of paying union dues.  However, a coalition of labor groups petitioned to put the measure to a vote, and it was defeated in a voter referendum the next year.   We will continue to monitor this evolving area of the law and provide any necessary updates.

Village of Lincolnshire’s Right-to-Work Zone Struck Down by 7th Circuit

Contributed by Carlos Arévalo, October 2, 2018

36419114 - hand about to bang gavel on sounding block in the court room

Judge with gavel

Last week, the 7th Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) held that Section 14(b) of the National Labor Relations Act (NLRA) does not permit local governments to create local “right-to-work” zones that seek to ban union-only shops in the private sector. The court further concluded that bans on requiring union hiring halls and compulsory union dues checkoff agreements are also invalid under the NLRA.

In 2015, the Village of Lincolnshire adopted an ordinance that banned union-security agreements, within the Village, by forbidding any requirement that private sector workers join a union or compensate a union in order to keep their job working at a unionized worksite. Interestingly, the ordinance was overwhelmingly supported by the Village’s residents and taxpayers. The ordinance also barred any requirement that employees “be recommended, approved, referred, or cleared for employment by or through a labor organization” (aka a union hiring hall). Finally, the ordinance prohibited employers from making any payment to unions pursuant to signed authorizations revocable by employees at any time (aka dues check-off). A number of unions successfully sued the Village in district court and the Village appealed.

Chief Judge Diane Wood, writing for a unanimous three-judge panel, noted that the issue of whether a local law, rather than a state-wide law, falls within the scope of Section 14(b) is a subject that has divided courts. Specifically, Judge Wood pointed to a 2017 6th Circuit decision in United Automobile, Aerospace & Agricultural Implement Workers of America v. Hardin County, Kentucky that held that a right to work law adopted by Hardin County was not preempted by the NLRA and, therefore, valid.

Judge Wood acknowledged that the 7th and 6th Circuits are in agreement and the law is clear that local governments cannot regulate hiring halls and dues checkoff obligations as negotiated and made part of a private collective bargaining agreement. However, this left the issue of compulsory union membership in order to maintain employment with a private unionized employer as the central question for the court to decide and here is where the 7th Circuit split from the 6th Circuit (which covers Kentucky, Ohio, Michigan and Tennessee).

In the decision, the court rejected arguments that as a political subdivision of Illinois, the Village can exercise federal laws granted to the State. To do so would result in an administrative nightmare of having over 38,000 local governments (as opposed to 50 states and a few territories) adopt their own right to work laws. “Permitting local legislation under section 14(b) threatens ‘a crazy-quilt of regulations.’ The ‘consequence of such diversity for both employers and unions would be to subject a single collective bargaining relationship to numerous regulatory schemes thereby creating an administrative burden and an incentive to abandon union security agreements.’” This, the court explained, undermines the Supreme Court’s pronouncement that “Congress enacted the NLRA to create national uniformity in labor law.” Accordingly, according to the 7th Circuit, Section 14(b) simply does not extend to the political subdivisions of the states to enact local “right-to-work” zones whereas Illinois could if it wanted to. NOTE:  Indiana and Wisconsin have previously enacted Right-to-Work laws so this decision, for now, only impacts Illinois private employers and employees.

While the U.S. Supreme Court declined to review the 6th Circuit decision in Hardin County, this split sets up a potential United States Supreme Court review. Thus, the stakes are raised even higher on the imminent appointment of retired Justice Anthony Kennedy’s replacement. On that subject, one thing is certain – we’ll have a clearer picture in the next couple of months. Maybe…  stay tuned!

Complimentary Webinar: Missouri Becomes the 28th Right-to-Work State: What You Need to Know!

Join Michael MacHarg and Patrick Sanders on Wednesday, April 19 at 12:00 PM CT for an hour long webinar as they discuss the nuts and bolts of the right-to-work (RTW) law. Last month, the Missouri governor signed into law a right-to-work bill, effective August 28, 2017, making Missouri the 28th RTW state. Right-to-work laws guarantee that no person can be compelled, as a condition of employment, to join or not to join, nor to pay dues to a labor union.

What does this mean for employers? Specifically, Jeff and Patrick will cover:

  • The law’s application and timelines
  • Types of actions the law prohibits
  • Penalties for violations
  • Potential effect on current and future collective bargaining and what new labor agreements will look like

Don’t miss this timely discussion and opportunity to submit questions on how the new provisions could impact your business!

Click here to register!