Since my last blog on this subject, dated November 28, 2016, two more states have enacted Right to Work laws. This brings to twenty-eight the total number of states having such laws, which prohibit requirements that workers pay union dues as a condition of employment. Kentucky's Right to Work law was signed by Governor Matt Bevin on January 7, 2017; it took effect immediately. Missouri's was signed by Governor Eric Greitens on February 6, 2017. It will not go into effect until August 28, 2017. Moreover, if unions obtain a sufficient number of signatures on a petition for a referendum, it will not go into effect unless Missouri voters approve the new law in the 2018 general election. [Read More]
On December 13, 2016, the Littler law firm sponsored a program entitled “The 2016 Presidential Election: What a Trump Administration Might Mean for Employers.” The program included a brief discussion of four “important labor and employment cases pending before the [U.S. Supreme] Court.” One of those cases is Serna v. Transport Workers Union of America, 654 Fed. Appx. 665 (5th Cir. July 11, 2016) (per curiam), petition for cert. docketed, No. 16-484 (U.S. Oct. 12, 2016), a case in which National Right to Work Legal Defense Foundation attorneys represent the plaintiff airline employees who are compelled to pay union fees as a condition of their employment even though they have chosen not to join the union. The issues presented in Serna are:
(1) “[w]hether [Railway Employes’ Department v.] Hanson[, 351 U.S. 225 (1956)], and implicitly Abood v. Detroit Board of Education, 431 U.S. 209 (1977), should be overruled insofar as they uphold the constitutionality of compulsory union fees”; and
(2) “[w]hether requiring that employees affirmatively object to subsidizing constitutionally nonchargeable union speech, rather than requiring affirmative consent, violates the First Amendment.”
Serna gives the Court an opportunity to revisit the issues it ducked 4-4 in Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (per curiam), reh’g denied, 136 S. Ct. 2545 (2016), when Justice Antonin Scalia unexpectedly died after the Court had heard oral argument in the case. The Justices will consider the Serna petition at their conference on January 6, 2017.
Right to Work laws prohibit requirements that workers pay union dues as a condition of employment. Section 14(b) of the National Labor Relations Act authorizes states to enact such laws. The U.S. Supreme Court has twice upheld the constitutionality of state Right to Work laws. Davenport v. Washington Educ. Ass’n, 551 U.S. 177, 184-85 (2007) (public sector); Lincoln Federal Labor Union No. 19129 v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949) (private sector). In the last four years four states—Indiana, Michigan, Wisconsin and West Virginia—have enacted new Right to Work laws, bringing to twenty-six the total number of states having such laws.Finding themselves on the losing side of recent legislative battles over Right to Work, unions have turned to the courts, challenging all four new Right to Work laws, plus Idaho’s, as unconstitutional on various grounds not explicitly addressed in the Supreme Court’s decisions. However, the litigation has ended in Indiana and Michigan with the challenged laws upheld, and the challenged laws continue to be enforceable in the other three states in which the litigation is still pending. Brief summaries of the cases are available.
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Raymond J. LaJeunesse, Jr. is Vice President & Legal Director at the National Right to Work Legal Defense Foundation, Inc.
23 years ago, Congress passed the Family and Medical Leave Act with the promise that it would not harm businesses because the leave was unpaid – and, thus, would not present a moral hazard. FMLA was the bait, and now we are seeing the switch as the Obama Administration is pushing hard for paid leave. DOL seems to post a tweet on paid leave every other day, using the #LeadOnLeave hash-tag, including the recent tweet: “As the #OpeningCeremony kicks off, the US has already fallen behind in the sprint for paid leave.”
Is this yet another solution in search of a problem? Another attack on small businesses? I say "yes" to both. Digging down into the latest data from BLS, 80% of “private industry” employees working for large employers (500 or more employees) have paid leave already – a benefit necessary to attract and retain the best employees – compared to 53% of employees who work for companies with less than 50 employees. So, most employees who do not already have paid leave work for small businesses who can't afford to provide it. What impact will forced paid leave have on small businesses? Well, probably the same impact as minimum wage hikes – it will destroy jobs. What about the 20% of employees at large employers without paid leave? Most likely, they are among the 70% of part-time employees who do not have paid leave. To learn the facts about paid leave, see Table 6.
Last week, Senior U.S. District Court Judge Sam Cummings of the Northern District of Texas issued a nationwide injunction to prevent implementation of the Department of Labor’s radical new reinvention reinterpretation of the ‘persuader rule.’ The court’s well-reasoned and thorough decision has put a halt, at least temporarily, to this egregious example of executive overreaching to support this Administration’s union allies, but which posed a genuine threat to the confidentiality of attorney-client communications. [Read More]