The Michigan Legislature Passes Right-To-Work Acts

The Michigan House and Senate have considered and passed Right-To-Work bills, one for the private sector and one for the public sector.  The Governor reportedly will sign the bills at 5:30 p.m. on December 11, 2012.  The bills will not become effective until 90 days after the Legislature adjourns for 2012.  Therefore, the bills will not become effective until sometime in late March, 2013.

Michigan's Right-To-Work Acts will prohibit employers from enforcing "union shop" clauses [an employee must join the union and pay dues to maintain his/her employment] and "agency shop" clauses [an employee need not join a union but must pay a service fee to the union equal to the "core-financial" payments made by employees who have joined the union].

In short, the Right-To-Work Acts will prohibit an employer from discharging an employee who refuses to join a union or who refuses to pay union fees, dues or a service fee. The Acts provide the employee with a cause of action against the employer and union if he or she is discharged in violation of the Acts.

Michigan's Proposed Right-To-Work Law

Senate Bill 116 amends the Michigan Employment Relations Commission Act which addresses private employees' rights to organize together to form, join or assist a labor organization and to collectively bargain with their employer.  The Right-To-Work bill adds Section 8(B)(1) to the Act to read:

"An individual shall not be required as a condition of obtaining or continuing employment to do any of the following:

(A) Refrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization.

(B) Become or remain a member of a labor organization.

(C) Pay any dues, fees, assessments, or other charges or expenses of any kind or amount or provide anything of value to a labor organization.

(D) Pay to any charitable organization or third party an amount that is in lieu of, equivalent to, or any portion of dues, fees, assessments, or other charges or expenses required of members of or employees represented by a labor organization.

The public employee bill has similar language. The acts only apply to agreements , contracts, understandings, or practices which take effect or are extended or renewed after the effective date of the acts.

Provisions in a collective bargaining agreement that violate Section 8(B)(1) are declared unlawful and unenforceable.  Employees who suffer an injury as a result of a violation of the acts may bring a civil action for damages, and injunctive relief.  Employers also face fines of not more than $500 for violation of the acts.

Recommendations

The Michigan Right-To-Work Law will significantly change how employers with union shop and agency shop clauses may enforce those provisions.  Because this is a very complicated and strategic point of law we recommend the following:

• Private employers who have collective bargaining agreements that do not expire until after the effective date of the Right-To-Work Law (sometime in March 2013) and which require employees to join a union or lose their job must continue to enforce the provision until they bargain a new collective bargaining agreement.  Public employers will be required to comply with the law once the acts are in effect and their collective bargaining agreements expire.
• Both private and public employers should consult with their labor attorney before agreeing to extend existing contracts to determine the benefit and possible consequences of extending the current collective bargaining agreement.

If you have any questions about Michigan's Right-To-Work Law contact Thomas P. Brady at (313) 965-8291 or tbrady@clarkhill.com , John L. Gierak at (248) 988-5845 or jgierak@clarkhill.com or another member of Clark Hill's Labor and Employment Practice Group or Education Practice Group.