Michigan Repeals Right-To-Work | Foley & Lardner LLP
In a highly anticipated move, on March 24, 2023, Michigan Governor Gretchen Whitmer signed a repeal of the state’s 2012 so called “Right to Work” legislation. The repeal had long been a stated goal of Democrats in the state legislature. Following the conversion of both houses of the state legislature to Democratic control after the 2022 election, the legislative majorities and Governor made good on the promise.
In 2012, a Republican legislature passed Michigan’s Right to Work law, which prohibited collective bargaining agreement clauses that require employees to become union members and pay union dues. (typically called Union Security clauses). The law permitted Michigan employees in unionized workplaces to refrain from joining the union and/or paying union dues if they chose. Because federal law (namely the National Labor Relations Act) requires unions to continue to represent all employees in a bargaining unit, the effect of the law was that employees could enjoy the benefits of union representation without the burden of paying dues. It is no surprise that unions hotly contested the Right to Work statute, as it denied them resources.
Interestingly, in the time since the passage of Michigan’s Right to Work law, unions have found ways to use the law to their advantage in some circumstances. For example, during organizing campaigns, some unions use the law to convince reluctant employees to vote for the union by informing employees they will not be required to pay dues and could opt out of such payments once the union is elected. In the circumstance of an election, the ironic outcome of the Right to Work law was that it provided unions with a campaign tool while robbing employers of the counter-argument that employees should vote against a union because payment of dues would cut into their wages.
Despite its potential use in union campaign strategy, the Right to Work law in general was still generally disfavored by unions because of its negative impact on resources and membership. Organized labor therefore generally applauded the new legislation, which repeals Michigan’s Right to Work law in its entirety.
The practical implication of the new law is that, once it comes into effect in March 2024, any negotiations for new collective bargaining agreements in the Great Lakes State will certainly involve bargaining over Union Security clauses as a subject of bargaining. Additionally, some existing agreements may already have Union Security clauses that were drafted to come into effect once permitted under law. Some speculate that the repeal of Right to Work in Michigan may also lead to increased organizing activity because the possibility of having a Union Security clause increases the financial incentive for such campaigns.
Michigan employers with unionized facilities should review their contracts to determine whether it contains a security clause that may become operative once the repeal goes into effect. Such employers should also consider the expiration of their collective bargaining agreements to determine whether they expire prior to or after the repeal’s effective date as that timing will impact whether union security clauses will be a subject of bargaining. Employers with non-unionized facilities should keep an eye out for potential organizing activity as invigorated unions seek to expand their footprint.
Even non-Michigan employers in Right to Work states should look to Michigan as a potential harbinger of change in their state if the state legislature is inclined to follow Michigan’s lead.
