Right-to-work law
In the context of labor law in the United States, the term right-to-work laws refers to state laws that prohibit union security agreements between employers and labor unions. Such agreements can be incorporated into union contracts to require employees who are not union members to contribute to the costs of union representation. Unlike the right to work definition as a human right in international law, U.S. right-to-work laws do not aim to provide a general guarantee of employment to people seeking work but rather guarantee an employee's right to refrain from being a member of a labor union.
The 1947 federal Taft–Hartley Act governing private sector employment prohibits the "closed shop" in which employees are required to be members of a union as a condition of employment, but allows the union shop or "agency shop" in which employees pay a fee for the cost of representation without joining the union. Individual U.S. states set their own policies for state and local government employees. Twenty-eight states have right-to-work policies. In 2018, the U.S. Supreme Court ruled that agency shop arrangements for public sector employees were unconstitutional in the case Janus v. AFSCME.
History
Origins
The original use of the term right to work was coined by French socialist leader Louis Blanc before 1848. According to the American Enterprise Institute, the modern usage of the term right to work was coined by Dallas Morning News editorial writer William Ruggles in 1941.According to PandoDaily, the modern term was coined by Vance Muse, a Republican Party operative who headed the Christian American Association, an early right-to-work advocacy group, to replace the term "American Plan" after it became associated with the anti-union violence of the first Red Scare. Muse used racial segregationist arguments in advocating for anti-union laws.
According to Slate, right-to-work laws are derived from legislation forbidding unions from forcing strikes on workers, as well as from legal principles such as freedom of contract, which sought to prevent passage of laws regulating workplace conditions.
Wagner Act (1935)
The National Labor Relations Act, generally known as the Wagner Act, was passed in 1935 as part of President Franklin D. Roosevelt's "Second New Deal". Among other things, the act provided that a company could lawfully agree to be any of the following:- A closed shop, in which employees must be members of the union as a condition of employment. Under a closed shop, an employee who ceased being a member of the union for whatever reason, from failure to pay dues to expulsion from the union as an internal disciplinary punishment, was required to be fired even if the employee did not violate any of the employer's rules.
- A union shop, which allows for hiring non-union employees, provided that the employees then join the union within a certain period.
- An agency shop, in which employees must pay the equivalent of the cost of union representation, but need not formally join the union.
- An open shop, in which an employee cannot be compelled to join or pay the equivalent of dues to a union or be fired for joining the union.
Taft–Hartley Act (1947)
In 1947, the U.S. Congress passed the Labor Management Relations Act of 1947, generally known as the Taft–Hartley Act, over President Harry S. Truman's veto. The act repealed some parts of the Wagner Act, including outlawing the closed shop. Section 14 of the Taft–Hartley Act also authorizes individual states to outlaw the union shop and agency shop for employees working in their jurisdictions. Any state law that outlaws such arrangements is known as a right-to-work state.Current status
The federal government operates under open shop rules nationwide, but many of its employees are represented by unions. Unions that represent professional athletes have written contracts that include particular representation provisions, but their application is limited to "wherever and whenever legal," as the Supreme Court has clearly held that the application of a right-to-work law is determined by the employee's "predominant job situs". Players on professional sports teams in states with right-to-work laws are thus subject to those laws and cannot be required to pay any portion of union dues as a condition of continued employment.Support and opposition
Supporters
Freedom of association
Besides the Supreme Court, other proponents of right-to-work laws also point to the U.S. Constitution and the right to freedom of association. They argue that workers should both be free to join unions or to refrain, and thus, sometimes refer to states without right-to-work laws as forced unionism states. These proponents argue that by being forced into a collective bargain, what the majoritarian unions call a fair share of collective bargaining costs, is actually financial coercion and a violation of freedom of choice. An opponent to the union bargain is forced to financially support an organization for which they did not vote in order to receive monopoly representation for which they have no choice.The Seventh-day Adventist Church discourages the joining of unions, citing the writings of Ellen White, one of the church's founders, and what writer Diana Justice calls the "loss of free will" that occurs when a person joins a labor union.
Unfairness
Proponents such as the Mackinac Center for Public Policy contend that it is unfair that unions can require new and existing employees to either join the union or pay fees for collective bargaining expenses as a condition of employment under union security agreement contracts. Other proponents contend that unions may still be needed in new and growing sectors of the economy, for example the voluntary and third party sectors, to assure adequate benefits for new immigrant, part-time aides such as the direct support professional workforce.Political contributions
Right-to-work proponents, including the Center for Union Facts, contend that political contributions made by unions are not representative of the union workers. The agency shop portion of this had previously been contested with support of National Right to Work Legal Defense Foundation in Communications Workers of America v. Beck, resulting in "Beck rights" preventing agency fees from being used for expenses outside of collective bargaining if the non-union worker notifies the union of their objection. The right to challenge the fees must include the right to have it heard by an impartial fact finder. Beck applies only to unions in the private sector, given agency fees were struck down for public-sector unions in Janus v. AFSCME in 2018.Opposition
Free riders
Opponents, such as Richard Kahlenberg, have argued that a right-to-work law "gives employees the right to be free riders—to benefit from collective bargaining without paying for it." Benefits that the dissenting union members receive, despite not paying dues, also include representation during arbitration proceedings. In Abood v. Detroit BoE, the Supreme Court of the United States permitted public-sector unions to charge non-members agency fees so that employees in the public sector could be required to pay for the costs of representation, even as they opted not to be a member, as long as these fees are not spent on the union's political or ideological agenda. This decision was reversed, however, in Janus v. AFSCME, with the Supreme Court ruling that such fees violate the First Amendment in the case of public-sector unions, arguing that all bargaining by a public-sector union can be considered political activity.Restricted freedom of contract and association
Opponents argue that right-to-work laws restrict freedom of association, and limit the sorts of agreements that individuals acting collectively can make with their employer by prohibiting workers and employers from agreeing to contracts that include fair share fees. They also argue that American law imposes a duty of fair representation on unions, so non-members in right-to-work states can force unions to provide grievance services without compensation that are paid by union members. Kahlenberg and Marvit also argue that, at least in efforts to pass a right-to-work law in Michigan, excluding police and firefighter unions—traditionally less hostile to Republicans—from the law caused some to question claims that the law was simply an effort to improve Michigan's businesses climate, not to seek partisan advantage.In December 2012, libertarian writer J. D. Tuccille wrote in Reason: "I consider the restrictions right-to-work laws impose on bargaining between unions and businesses to violate freedom of contract and association.... I'm disappointed that the state has, once again, inserted itself into the marketplace to place its thumb on the scale in the never-ending game of playing business and labor off against one another.... This is not to say that unions are always good. It means that, when the state isn't involved, they're private organizations that can offer value to their members."
Studies of economic effect
Many studies of the effect of right-to-work laws exist but they find substantially different results. Studies have found both "some positive effect on job growth" and no effect. A 2019 paper in the American Economic Review by economists from MIT, Stanford, and the U.S. Census Bureau, which surveyed 35,000 U.S. manufacturing plants, found that "the business environment, as measured by right-to-work laws, boosts incentive management practices." According to a 2020 study published in the American Journal of Sociology, right-to-work laws lead to greater economic inequality by indirectly reducing the power of labor unions. Looking at the growth of states in the Southeast following World War II, economist Tim Bartik says that while these states have right-to-work laws, they have also benefited from "factors like the widespread use of air conditioning and different modes of transportation that helped decentralize manufacturing."Economist Thomas Holmes argues that it is difficult to analyze right-to-work laws by comparing states because of other similarities between states that have passed these laws. For instance, right-to-work states often have some strong pro-business policies, making it difficult to isolate the effect of right-to-work laws. Holmes compared counties close to the border between states with and without right-to-work laws, thereby holding constant an array of factors related to geography and climate. He found that the cumulative growth of employment in manufacturing in the right-to-work states was 26% greater than that in the non-right-to-work states. Given the study design, Holmes writes that "my results do not say that it is right-to-work laws that matter, but rather that the 'pro-business package' offered by right-to-work states seems to matter." Moreover, as noted by Kevin Drum and others, this result may reflect business relocation rather than an overall enhancement of economic growth since, as Drum writes, "businesses prefer locating in states where costs are low and rules are lax".