According to the United Nations’ Universal Declaration of Human Rights, everyone has the right to work and the free choice of employment. That concept of free choice of work plays out in the U.S. in right-to-work laws. These laws state that if a worker in a right-to-work state is hired by a company that has a union, they have the right to work at that company without having to join its union.
What Are Right-to-Work Laws?
Right-to-work (RTW) laws are specific federal and state laws that determine whether workers can be required to join a labor union to get or keep a job. Stated another way, “right to work” means that employees have the right to work without having to join a union, but still get the benefits of being in a union, and they don’t have to pay union dues and fees as a condition of employment.
Right-to-Work Laws vs. Labor Laws
While RTW laws are specific and union-related, labor laws are primarily general laws that affect both employers and employees. U.S. labor laws are administered by the Department of Labor and include legislation setting employee minimum wage and employee safety and health standards, and regulating pension and welfare benefits provided by employers.
However, one specific federal labor law affecting unions is the Labor-Management Reporting and Disclosure Act, which deals with the relationship between a union and its members and includes protecting union funds and promoting democracy.
Federal Labor Laws and Right to Work
One of the first U.S. labor laws enacted was the National Labor Relations Act of 1935 (NLRA), otherwise known as the Wagner Act, which governed private sector employee/employer bargaining and union-management relationships, and established the National Labor Relations Board (NLRB).
Originally, the NLRA forced all employees to become members of a union and pay union dues (referred to as a “closed shop”). But this was amended with the passage of the 1947 Labor-Management Relations Act, commonly called the Taft-Hartley Act.
The Taft-Hartley provisions essentially reversed the NLRA requirement, declaring that the closed shop concept was illegal, prohibiting compulsory union dues and fees, and saying that employers could sign an agreement under which employees could be required to join the union. In addition, Taft-Hartley gives U.S. states and territories the ability to enact RTW laws.
What the National Labor Relations Board (NLRB) Does
The NLRB is an independent federal agency that has several major duties, including:
- Hearing employer/employee disputes
- Determining which labor organization will represent a specific employee group (called a “unit”)
- Facilitating settlements
- Investigating and prosecuting cases against violators of the NLRA
The NLRB prohibits employers and unions from engaging in “unfair labor practices” and sets the standard for good-faith collective bargaining.
Right to Work for Public Sector Employees
Public sector workers, which include independent contractors and those who work for local, state, and U.S. government entities, are a special RTW case because they are not covered under the NLRB, leaving the states to enact RTW laws for public employees. Federal non-postal employees are subject to the Federal Service Labor-Management Relations Act (FSLMRA), which is administered by the Federal Labor Relations Authority.
Right to Work and Union Dues
The amount of union dues collected from employees is subject to federal and state laws and court rulings. An agreement between a union and employers to collect union dues from employees is called a “union-security agreement.” These agreements, however, are not allowed in RTW states.
In non-RTW states, employees may choose not to become a union member and pay dues, or opt to pay only the part of dues for representation, and they are protected by the union. Employers must tell all covered employees about this option.
State Right-to-Work Laws
Currently, 27 states plus Guam have RTW laws. States with RTW laws require union contracts to cover all workers, not just the ones who are members of the union.
In states without RTW laws, workers covered by the union contract can refuse union membership. Employees in this situation used to be charged a fee (called an agency fee) for union representation. But in a 2018 split decision in the case of Janus v. American Federation of State, County, and Municipal Employees, the Supreme Court overturned a precedent permitting agency fees and ruled that extracting such fees from nonconsenting employees violated their First Amendment rights to free speech and free association.
The National Conference of State Legislatures provides a list of the states that currently have RTW laws.
Pro and Con Arguments of Right-to-Work Laws
Considering the contentious nature of RTW laws, it’s worth noting the pros and cons and some of the major talking points offered by both advocates and opponents.
Pros of Right-to-Work Laws
One argument for RTW laws says that the First Amendment right to association also includes the right not to be forced to associate (forced to join a union, for example).
Pro-RTW advocates also argue that using their union dues, supposedly for union purposes but in reality for political purposes, is also a violation of their First Amendment freedoms.
Another justification for RTW laws is that they correlate with a higher standard of living in RTW states, with faster growth in per capita income and lower unemployment rates, among other indicators.
Cons of Right-to-Work LAWS
Opponents of RTW say that they allow some workers to receive a free ride, getting the advantages of being in the union without having to pay for these advantages.
Another argument against RTW is that it weakens unions and thereby hurts workers, the middle class, and local economies. Opponents say that workers in RTW states earn less per year than similar workers in states without RTW laws.
Some also contend that RTW laws don’t create new jobs in states, citing statistics showing that they have no effect on job creation or growth.
Frequently Asked Questions
Are right-to-work laws for public employees different from the laws for private businesses?
RTW laws in 15 states apply to all public employees, and four other RTW states have separate laws for public employees. Some states don’t allow certain types of public employees (police and firefighters, for example) to unionize. Three states—North Carolina, South Carolina, and Virginia—have state laws that ban all collective bargaining by public employees.
Can a right-to-work law keep an employee from being fired?
An RTW law isn’t the same as at-will employment. At-will employee/employer relationships mean that either the employee or the employer can terminate the employment relationship at any time, for any reason, as long as that reason isn’t illegal under state or federal law. But being under a union contract overrides at-will status, so union processes may affect a company’s ability to terminate.
If state and federal RTW laws differ, which wins?
The states have the authority to set and administer RTW laws. But don’t forget the court system, including the Supreme Court, which can, and does, determine the constitutionality of RTW and federal and state labor laws.