Right to work and how it will work in Michigan

by Gary Fealk

On December 11, Michigan passed Senate Bill 116, commonly known as the right-to-work law. In accordance with the Michigan Constitution (Article IV, Section 27), the law will go into effect 90 days after the end of the legislative session.

Under the law, an individual cannot be required to do any of the following to obtain or continue employment:

  • Become a member of a labor organization;
  • Remain a member of a labor organization;
  • Resign her membership in a labor organization;
  • Refrain from financially supporting a labor organization or paying dues, fees, or other charges of any kind to a labor organization; or
  • Pay to any charitable organization or third party the equivalent of the dues, fees, and assessments required of union members.

It is also unlawful to compel or attempt to compel—by force, intimidation, or threats—any individual to do any of those things. The bottom line is that under the right-to-work law, employees are free to refrain from any form of union membership and can’t be required to pay any dues or fees to the union whatsoever.

Despite that, any union security clause in a collective bargaining agreement that is in effect as of the date the legislation takes effect (90 days after the end of the legislative session) will remain valid until the contract expires. Upon expiration of the contract, a contract provision that violates the above prohibitions will be invalid and unenforceable. This includes a union security clause in a contract that is extended or renewed after the law’s effective date. Arguably, under the right-to-work law, there is a window before it takes effect during which contracts can be extended or renewed, including the union security provision.

Any person who violates the new law will be subject to a $500 civil fine payable to the state of Michigan. If there is a lawsuit by an employee who suffers an injury as a result of a violation of the law (e.g., was terminated for failing to pay union dues), the employee may recover damages and/or obtain an injunction and will be entitled to his reasonable attorneys’ fees and costs if he prevails. The state of Michigan also appropriated $1 million for the 2012-2013 fiscal year to implement the law. This is significant because bills that contain appropriations can’t be revoked by a ballot referendum.

Unions oppose right-to-work legislation because such laws hurt them financially. Some bargaining unit members will choose not to pay dues and fees. Unions oppose right-to-work legislation on a philosophical level as well—they don’t believe that some individuals (so-called “free riders”) should be allowed to obtain the “benefits” of union membership without paying the costs.

In non-right-to-work states, a union security clause (along with a dues-checkoff provision) ensures the union’s income stream. While employees can’t be forced to sign a checkoff authorization, an employee who refuses dues checkoff and doesn’t make timely payments of dues and fees required by the union is subject to termination from employment by contract.

In states with right-to-work laws, union security clauses requiring union membership (payment of dues and fees) are unlawful. Therefore, when employees within the bargaining unit exercise their right not to pay dues and fees to the union, the union is deprived of income. However, employees who don’t pay union dues and fees are still represented by the union and will get the benefit of the negotiated contract, and the union owes them the same duty of fair representation it owes to all other unit members.

Gary Fealk is an attorney and shareholder with Vercruysse Murray & Calzone, P.C., in Detroit and a contributor to Michigan Employment Law Letter. You can contact him at gfealk@vmclaw.com.

About Michigan Employment Law Letter:
Excerpted from Michigan Employment Law Letter and written by an attorney at the law firm of Vercruysse Murray, P.C. This article is an excerpt from MICHIGAN EMPLOYMENT LAW LETTER. MICHIGAN EMPLOYMENT LAW LETTER is intended to provide information but not provide legal advice regarding any particular situation. The information in this article is to make you aware of the implications of several contemporary problems. This article is not intended to be, and should not be regarded as, a legal opinion or legal advice. It is simply not possible or prudent to offer legal advice or a legal opinion without a prior thorough investigation and analysis of the facts attendant to any specific situation. Contact the attorneys at Vercruysse Murray, P.C.
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