An Earlier Than Expected Effective Date to the Repeal of the Right To Work Acts in Michigan

The Michigan Legislature ended its 2023 session much earlier than normal—on Nov. 14, instead of in late December as it has done in years past. As a result, the effective date of 2023 PA 8, which repealed Michigan’s Right to Work Act, will take effect on the 91^st day after final adjournment of the 2023 Regular Session, which is Feb. 13, 2024. Previously, it was expected that 2023 PA 8 would go into effect in March of 2024.

Meanwhile, 2023 PA 9, the public project counterpart to 2023 PA 8, is subject to the United States Supreme Court’s 2018 decision in Janus v. AFSCME Council 31. Janus found that any requirement for public sector employees to pay union dues or agency fees constituted action by a state or state actor in violation of the First Amendment of the U.S. Constitution. Thus, 2023 PA 9 will not become effective unless the Supreme Court reverses or limits its holding in Janus.

Michigan’s Current Right to Work Acts, through Feb. 12, 2024

Today, Michigan’s Right to Work Acts (2012 PA 348 and 349) prohibit an individual from being required to do any of the following to obtain or continue employment:

• Refrain from or resign from membership in, affiliation with, or financial support of a labor organization.
• Become or remain a member of a labor organization.
• Pay any dues, fees, or other charges to a labor organization.
• Pay a charitable organization or another third party an amount of money equivalent to dues, fees, or other charges that are required to be represented by a labor organization.

The Right to Work Acts provide employees with a cause of action against any employer and union if he or she is discharged in violation of those statutes. After these Right to Work Acts took effect, Michigan employers and unions removed provisions from collective bargaining agreements that required employees to financially support unions. In some instances, unions and employers agreed to terms addressing the restoration of those provisions in the event the Right to Work Acts were repealed. As noted, that repeal will become effective on Feb. 13, 2024.

The repeal of the Michigan Right to Work Acts, effective Feb. 13, 2024

Under 2023 PA 8, employees in private sector unionized workplaces no longer have a statutory right to opt out of union membership or refrain from paying union dues or fees as a condition of employment. 2023 PA 8 legalizes union security clauses in collective bargaining agreements which, as a condition of employment, force employees to pay dues, fees, assessments, or expenses that support labor unions. 2023 PA 8 once again allows unions to force employers to discharge employees who refuse to do so through the application of union security clauses. Also, 2023 PA 8 removed the financial penalty for using force, intimidation, or threats to compel employees to join or not join a union.

Importantly, 2023 PA 8 does not require that employers agree to these clauses in collective bargaining agreements. However, clauses addressing the restoration of pre-2012 language, or requiring discussions over that language, may be triggered in February of 2024. Further, it is virtually certain that unions will propose union security provisions once 2023 PA 8 takes effect.

Proper guidance from a knowledgeable professional can help all employers, such as owners and contractors, reduce risks and protect their interests when dealing with union security clauses and Right to Work Act issues.  If you have any questions on the effective dates of the Acts, or application to your project, consult your attorney or anyone in Clark Hill’s Construction or Labor and Employment Practice Groups.

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