Michigan — the home of the auto industry — is now the nation's 24th right-to-work state. On Tuesday afternoon, December 11, 2012, the Michigan House of Representatives passed a pair of right-to-work bills affecting the public sector (by a vote of 58-51) and the private sector (vote 58-52). Within hours after passing the House, Governor Rick Snyder signed both controversial bills into law. The bills passed in the Michigan Senate five days before. 

What follows are answers to many Frequently Asked Questions regarding Michigan's Right-to-Work Law affecting the private sector.

1.         What does Michigan's Right-to-Work Law prohibit?

Michigan's Right-to-Work Law (RTW) makes it an unlawful condition of employment to require employees to:

  1. Become or remain a member of a labor organization;
  2. Pay dues, fees, assessments or other charges to a labor organization; or
  3. Pay to a charity or another third party an amount in lieu of paying the dues, fees, assessments or other charges to a labor organization.

The law, likewise, makes it unlawful to require employees to refrain from becoming a member or remaining a member of a labor organization or voluntarily providing financial support for such organization.      

2.         Does RTW outlaw labor unions in Michigan?

No. RTW simply prohibits the payments noted in #1 above as a condition of employment.

3.        When does RTW become effective?

The RTW law becomes effective 90 days after the Michigan legislature adjourns. This likely will result in an effective date sometime around April 1, 2013. For employers with current collective bargaining agreements as of the effective date of this legislation, this means that it would be unlawful upon expiration, extension or renewal of that contract to include a provision that requires union membership, dues payment or payment to a third party in lieu of dues as a condition of employment.

4.         Are any private sector Michigan employers or employees excluded from RTW?

RTW applies to all employers with one or more employees in Michigan, with the exception of employees or employers subject to the Railway Labor Act, agricultural laborers, domestic service providers in a home, those employed by a parent or a spouse, or those in an executive or supervisory role. 

5.         How does RTW affect current collective bargaining agreements?

Under RTW, contracts in effect as of the statute's effective date — likely around April 1, 2013 — will not be affected. However, once any such contracts expire, are modified, renewed or extended, then RTW's prohibitions will apply.

6.         Can an individual sue for a violation of RTW?

Yes. If an individual is injured because of an actual or threatened violation of RTW, that individual may bring a civil action in state court. The court can award a successful plaintiff:

  1. The actual and consequential damages resulting from the violation or threatened violation;
  2. Attorneys' fees, litigation costs and expenses;
  3. Injunctive relief; and
  4. Any other relief the court considers proper.

In addition, a person, employer or union that violates RTW is liable for a civil fine of up to $500.

7.       If an employee in a bargaining unit decides, under RTW, not to be a union member or pay any dues, fees, assessments, etc., does the collective bargaining agreement still apply to the employee?

Yes. Even though the employee is not a union member and is not paying any type of dues, fees or other assessments to the union, the employee remains a member of the bargaining unit, and the collective bargaining agreement applicable to that bargaining unit applies to the employee.

8.       If an employee in a bargaining unit decides, under RTW, not to be a union member or pay any dues, fees, assessments, etc., is the union required to process the employee's grievances and represent the employee in arbitration?

Yes. Under the National Labor Relations Act Act), a union is required by law to represent all individuals in a bargaining unit equally, regardless of whether individuals are, or are not, union members. Unions generally have discretion to determine whether particular grievances should be taken to arbitration — but they cannot exercise their discretion discriminatorily.

9.       If an employee in a bargaining unit decides, under RTW, not to be a union member or pay any dues, fees, assessments, etc., can unions charge non-members fees to process grievances?

No. The National Labor Relations Board (Board) has held that unions must treat members and non-members identically when providing grievance processing services. As a result, the Board has held that unions violate the Act if they charge non-members the cost of providing a service that members get for free (even though members pay dues). 

10.       If an employee in a bargaining unit decides, under RTW, not to be a union member or pay any dues, fees, assessments, etc., can the union prohibit the employee from voting in any internal union matters, including in collective bargaining agreement ratification votes?

Yes. The National Labor Relations Act permits unions to enact bylaws or rules that exclude non-members from participating in internal union votes, including contract ratification votes.

11.      Can employers communicate directly with union-represented employees about RTW?

Yes. However, many unions will likely attempt to discourage employers from doing so. With regard to any communication with employees, keep in mind that the law also prohibits an employer from making it a condition of employment to refrain from becoming or remaining a union member or from voluntary payments to a union, therefore, such communications should be carefully drafted to avoid creating an unlawful impression.