United States: Michigan Enacts Right To Work Laws

Michigan became the 24th "Right to Work" state when Governor Rick Snyder signed into law on December 11, 2012, Public Act No. 348. This right to work law, which is titled the Workplace Equity and Fairness Act, is an amendment to Michigan 1939 PA 176, and applies to private sector employees, employers, and labor organizations. Governor Snyder also signed into law a right to work law for the public sector. That law is known as Public Act No. 349 and amends Michigan 1947 PA 336. Both statutes are to take effect on the 91st day after final adjournment of the 96th Legislature's 2012 Regular Session, or approximately March 28, 2013. However, the effect of the laws will not be immediate for everyone, as current collective bargaining agreements are "grandfathered" and the new right to work provisions will take effect upon the expiration of those agreements.

The key provisions of the private sector right to work law are:

  • Endorses the Right to Engage in or Refrain From Collective Action: The Act approves the right of employees to either engage in, or refrain from: forming, joining or assisting a labor organization; engaging in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection; or negotiating or bargaining collectively with their employers through representatives of their own free choice.
  • Prohibits the Closed Shop: Contrary to the existing law permitting "closed shops" that compel an employee to join a labor organization and pay dues, the Act creates an "open shop" where an employee may choose whether to join a labor organization and pay dues. Specifically, the Act provides that 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; or (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.
  • Prohibits Closed Shop Agreements: Any agreement, contract, understanding or practice between an employer and labor organization that violates the Act's prohibition of a "closed shop" is invalid. Current collective bargaining agreements are "grandfathered," as this prohibition will apply only to an agreement, contract, understanding, or practice that takes effect or is extended or renewed after the effective date of the Act.
  • Civil Fines for Violations:  Any individual, employer or labor organization that violates the above prohibitions is subject to a civil fine of up to $500.
  • Right of Action for Injured Person: Any person injured by a violation of the Act's prohibitions may bring a civil action for damages, injunctive relief, or both. A prevailing plaintiff may be awarded costs and reasonable attorney fees.
  • Civil Fines for Individual Threats and Intimidation: The Act prohibits an employee or other person from using force, intimidation, or unlawful threats in order to compel or attempt to compel any person to: (a) become or remain a member of a labor organization or otherwise affiliate with or financially support a labor organization; (b) refrain from engaging in employment or refrain from joining a labor organization or otherwise affiliating with or financially supporting a labor organization; or (c) 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 penalty for engaging in this conduct is a civil fine up to $500.
  • Michigan Court of Appeals Has Jurisdiction Over Challenges to the Act's Validity: The Act rests exclusive jurisdiction with the Michigan Court of Appeals over any action challenging the validity of the Act and requires any challenge to be heard in an expedited matter.
  • The Role of the Department of Licensing and Regulatory Affairs: The Act appropriates $1 million dollars to the Michigan Department of Licensing and Regulatory Affairs ("LARA") to implement the Act. This allocation will prevent any public referendum on the Act being mounted by its opponent. LARA's role is to respond to public inquiries regarding the Act, provide the employment relations commission created by the Act with the staff and resources to implement the Act, inform employers, employees, and labor organizations about their rights and responsibilities under the Act, and undertake all other purposes that are determined by the Director of LARA to be necessary to implement the Act. Accordingly, employers should review the LARA website (https://www.michigan.gov/lara) for information updates and workplace postings as the Act moves toward implementation.

The public sector version of the "Right to Work" law, Public Act No. 349, includes similar prohibitions and applies to most public sector employees, employers and labor organizations. Public police and fire department employees, as well as Michigan State Police troopers and sergeants are, however, specifically excluded.  

Michigan has always been known as a strong union state and these "Right to Work" laws have been vigorously opposed by organized labor. It is expected that this opposition will continue and that the United Automobile Workers Union, with its headquarters in Detroit, will spearhead efforts to challenge the Act's validity, as well as mount efforts to either recall the elected officials who supported the passage of "Right to Work" in Michigan or elect new legislators and a governor who will try to restore Michigan to its prior "closed shop" status.  

Current and prospective Michigan employers will want to monitor developments as these "Right to Work" laws move closer to their implementation date.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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