Right-to-work laws are statutes enforced in twenty-two U.S. states, mostly in the southern or western U.S., allowed under provisions of the federal Taft–Hartley Act, which prohibit agreements between labor unions and employers that make membership, payment of union dues, or fees a condition of employment, either before or after hiring, which would require the workplace to be a closed shop.
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Prior to the passage of the Taft–Hartley Act by Congress over President Harry S Truman's veto in 1947, unions and employers covered by the National Labor Relations Act could lawfully agree to a closed shop, in which employees at unionized workplaces must be members of the union as a condition of employment. Under the law in effect before the Taft-Hartley amendments, 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, could also be fired even if the employee did not violate any of the employer's rules.
The Taft–Hartley Act outlawed the closed shop. The union shop rule, which required all new employees to join the union after a minimum period after their hire, is also illegal.[1] As such, it is illegal for any employer to force an employee to join a union.
A similar arrangement to the union shop is the agency shop, under which employees must pay the equivalent of union dues, but need not formally join such union.
Section 14(b) of the Taft–Hartley Act goes further and authorizes individual states (but not local governments, such as cities or counties) to outlaw the union shop and agency shop for employees working in their jurisdictions. Under the open shop rule, an employee cannot be compelled to join or pay the equivalent of dues to a union, nor can the employee be fired if he joins the union. In other words, the employee has the right to work, regardless of whether or not he is a member or financial contributor to such a union.
The Federal Government operates under open shop rules nationwide, though many of its employees are represented by unions. Unions that represent professional athletes have written contracts that impose forced-unionism requirements,[2] 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." [3] Hence, players on professional sports teams in states with Right to Work laws are protected by those laws, and cannot be required to pay any portion of union dues as a condition of continued employment.[4]
Twenty-eight states and the District of Columbia do not have right-to-work laws. If no union is formed in an employee's workplace, the lack of a right-to-work law does not mean an employee has to join or pay union membership dues to a union.
Proponents of right-to-work laws point to the Constitutional right to freedom of association, as well as the common-law principle of private ownership of property. They argue that workers should be free to join unions and to refrain, and thus sometimes refer to non-right-to-work states as "forced unionism" states.[5]
Some of the most compelling arguments come from analysis of the data. Northwestern University economist Thomas Holmes, now at University of Minnesota, "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 percentage points greater than that in the non-right-to-work states." [6]
Some contend that it is unfair that unions can require new and existing employees to become union members and pay costly membership dues for services they may not want or are philosophically opposed to. These contracts that require all employees to be union members are also known as a union security agreement and require all employees to either join the union or pay union dues as a condition of employment.[7] Furthermore, proponents point out that generally forced-union dues are used to support predominantly American-left political causes.[8]
Due to other similarities between states which have passed right-to-work laws, it is difficult to analyze these laws by comparing states; for instance, right-to-work states often have a number strong pro-business policies, making it difficult to disentangle the effect of right-to-work laws.[9] A March 3, 2008 editorial in The Wall Street Journal compared Ohio to Texas and examined why "Texas is prospering while Ohio lags". According to the editorial, during the previous decade, while Ohio lost 10,400 jobs, Texas gained 1,615,000 new jobs. The opinon piece proposed several possible reasons for the economic expansion in Texas, including the North American Free Trade Agreement (NAFTA), the absence of a state income tax, and right-to-work laws.[10]
Nobel laureate economist F.A. Hayek endorsed right-to-work laws, writing:
If legislation, jurisdiction, and the tolerance of executive agencies had not created privileges for the unions, the need for special legislation concerning them would probably not have arisen in common-law countries. But, once special privileges have become part of the law of the land, they can be removed only by special legislation. Though there ought to be no need for special 'right-to-work laws,' it is difficult to deny that the situation created in the United States by legislation and by the decisions of the Supreme Court may make special legislation the only practicable way of restoring the principles of freedom. Footnote: Such legislation, to be consistent with our principles, should not go beyond declaring certain contracts invalid, which is sufficient for removing all pretext to action to obtain them. It should not, as the title of the 'right-to-work laws' may suggest, give individuals a claim to a particular job, or even (as some of the laws in force in certain American states do) confer a right to damages for having denied a particular job, when the denial is not illegal on other grounds. The objections against such provisions are the same as those that apply to 'fair employment practices' laws.[11]
Opponents argue right-to-work laws create a free-rider problem,[12][13] in which non-union employees (who are bound by the terms of the union contract even though they are not members of the union) benefit from collective bargaining without paying union dues.[12][14]
The AFL/CIO union argues that because unions are weakened by these laws, wages are lowered[14] and worker safety and health is endangered. For these reasons, the union refers to right-to-work states as "right to work for less" states [15] or "right-to-fire" states, and to non-right-to-work states as "free collective bargaining" states.
Business interests led by the Chamber of Commerce lobbied extensively for right-to-work legislation in the Southern states.[12][16][17][18] Critics from organized labor have argued since the late 1970s[19] that while the National Right to Work Committee purports to engage in grass-roots lobbying on behalf of the "little guy", the National Right to Work Committee was formed by a group of southern businessmen with the express purpose of fighting unions, and that they "added a few workers for the purpose of public relations".[20]
The unions also contend that the National Right to Work Legal Defense Foundation has received millions of dollars in grants from foundations controlled by major U.S. industrialists like the New York-based Olin Foundation, Inc., which grew out of a family manufacturing business,[20][21][22] and other groups.[19]
The following 22 states are right-to-work states:
In addition, the territory of Guam also has right-to-work laws, and employees of the US Federal Government have the right to choose whether or not to join their respective unions.
† An employee's right-to-work is established under the state Constitution, not under legislative action.