Right-to-Work Laws and Workers’ Rights

Once a bastion of organized labor, Michigan has had a controversial right-to-work law on the books since 2012. On Tuesday, March 14th, the Michigan Senate approved a bill that would repeal it. Democratic Governor Gretchen Whitmer has already stated her intent to sign. With surging union approval ratings, some labor supporters cautiously hope this could signal broader pushback against the decades-long right-to-work initiative.

But what exactly are right-to-work laws, what case can be made for them, and why are they opposed by unions which generally support workers’ rights?

Right-to-work laws bear little relationship to a more colloquial understanding of the right to work as the right to seek and engage in productive employment. The term comes from  a 1941 editorial by editor of The Dallas Morning News, William Ruggles. Ruggles’s “right to work” was the right to not have to join a union as a condition of employment. His ideal was spun into a multi-state campaign by the corporate lobbyist turned right-wing political activist Vance Muse. This is still generally what right-to-work means in the United States.

In the words of the National Right To Work Legal Defense Foundation:

The Right to Work principle–the guiding concept of the National Right to Work Legal Defense Foundation–affirms the right of every American to work for a living without being compelled to belong to a union. Compulsory unionism in any form–“union,” “closed,” or “agency” shop–is a contradiction of the Right to Work principle and the fundamental human right that the principle represents. 

More precisely, right-to-work laws regulate the kinds of agreements that can be made between unions and employers known as union security agreements. These security agreements require certain measures of union support as a condition of employment. The typical ones are the closed shop, where only members of a certain union will be hired; the union shop, where employees must join the union as a condition of employment; the agency shop, where employees who choose not to join the union have to pay a fee to cover those union activities that they benefit from; and the open shop which imposes no conditions. (Closed shop agreements were made illegal by the 1947 Taft-Hartley Act.)

Most contemporary right-to-work laws – currently implemented in 27 states – forbid union shops and agency shops. Union membership cannot be a condition of employment, and non-union members cannot be required to pay agency fees.

The ban on agency fees has generated especially strident opposition from unions. Under the American policy of exclusive representation a union is still required to protect and negotiate on behalf of those employees who choose not to join it. Unions charge non-members agency fees, also known as fair share fees, to defray the cost of representing them. Banning agency fees creates an incentive for workers not to join the union, as they can still reap many of the benefits.

Numbers matter for unions. Employers may be more responsive to concerns about pay, benefits, and safety when many workers come together and voice them. It is uncontroversial right-to-work laws harm unions, and labor organizers argue this is the true purpose of such laws.

According to their advocates, right-to-work laws have two major selling points. The first is that they secure the rights of association/contract of the individual worker in contrast to “compulsory unionism.” The second is that right-to-work laws help the broader economy by attracting businesses to states. These very arguments were made by advocates of the Michigan right-to-work law, such as Republican State Senator Thomas Alberts.

Ostensibly, on freedom of association grounds, workers should have the right to join or not to join unions. On freedom of contract grounds the state should not be interfering with agreements between workers and employers. However, these defenses are incoherent on their face. As multiple scholars have pointed out — including Peter Vallentyne in these very pages — union membership or agency fees are simply a condition of employment and all sorts of conditions of employment are allowed, provided both parties agree to them — from drugs tests to uniforms. If an employee does not like the particular conditions on offer, the freedom of contract/association narrative goes, then they can choose a different job.

One can coherently argue the additional options provided by right-to-work laws are good — it is good for employees to have the option to join companies with or without union membership and with or without agency fees.

But right-to-work laws are not protecting the right to association or contract. Nor does so-called “compulsory unionism” appear obviously more compulsory than other work requirements, even if union membership is perhaps a more substantial requirement than uniforms.

What about the economic argument for right-to-work laws? Are they simply good policy, either for workers or for the state economy? Here the story is more complicated, and it is challenging to isolate the effects of right-to-work laws from the general political and economic background of states. On the one hand, it is often found that right-to-walk laws negatively impact wages. On the other, some studies find that through making states more attractive for businesses, overall state economic benefits compensate for potential lost wages.

The economic argument is treacherous ground though. For the essential claim is that by decreasing the power of workers and unions, states can lure businesses away from other states with more robust labor protections — a race to the bottom. An equally effective response would be to simply ban right-to-work laws at the national level, as some legislation proposes to do.

These arguments not withstanding, the debate at the heart of right-to-work is really a larger question concerning organized labor. There is a compelling historical case that the right-to-work movement in the United States has predominantly been about limiting union power and only nominally about rights or ethics. Similarly, for union supporters the main argument against right-to-work laws has always been that they hurt organized labor.

While requiring union membership as a condition of employment need not violate workers’ rights, most organizers would agree that it is preferable for workers to join and form unions independently. The agency shop, in which employees do not have to join but have to pay for some services, is especially antithetical to the historical intent of unionization. A union, after all, is an organization of and for workers; it is not simply a paid negotiator. Some problems of American labor, such as the tensions caused by exclusive representation, do not occur in many European countries which operate under a very different model. Perhaps there is room for a deeper rethink of what legal landscape does best by the American worker.