On February 1, 2012, Indiana became the 23rd state to adopt a statute that prohibits private employers and unions from entering into agreements that compel union membership and the payment of dues and fees as a condition of employment.  This so-called Right-to-Work Law was the focus of intense partisan debate, which led to a five-week boycott of the Indiana House before it was eventually passed by the Indiana General Assembly. Since then, Michigan became the 24th state to pass a Right-to-Work Law.

After passage, various labor groups and unions have challenged the validity of Indiana’s Right-to-Work Law as being in violation of the U. S. and Indiana constitutions.  This week, the Seventh Circuit Court of appeals held in a two to one decision that Indiana’s law does not violate the U. S. Constitution and is not preempted by federal law.  Also this week, the Indiana Supreme Court heard arguments involving the constitutionality of the law under the Indiana state constitution.

The final decision of the courts may be months or years away, but for now the Right-to-Work Law in Indiana is the law of the land, and, accordingly, Indiana employees have the right to work without being compelled to pay dues or fees to a union.

What Is “Right-to-Work”?

Most private, non-governmental employers are covered by the provisions of the National Labor Relations Act (“NLRA”), sometimes referred to as the Taft-Hartley Act.  Until 1947, the law allowed a union and an employer to agree that employees must join the union within 30 days or be fired.  That law still allows a “Union Security Clause” to be included in collective bargaining agreements, but in 1947, a provision, Section 14(b), was added to the law.  It permitted states to prohibit agreements that would require union membership as an employment condition.  Basically, a state could pass a law that gave employees the “right to work” without having to become a union member.

What the Indiana “Right-to-Work” Law Provides

Indiana’s Right-to-Work Law makes it a Class A misdemeanor for a person to knowingly or intentionally, directly or indirectly require an individual to:

  • Become or remain a member of a labor organization;
  • Pay dues, fees or other charges to a labor organization; or
  • Pay to a charity or another third party an amount that represents dues, fees or other charges required of members of a labor organization as a condition of employment or continuation of employment.

It’s important to note that nothing in the law prohibits employees from voluntarily choosing to become union members and pay dues.

Any contract, agreement or practice between an employer and a labor organization that does compel union membership, dues or charity payments is unlawful and void.

The law does not cover federal employees, employees subject to the Railway Labor Act, certain employees over whom the federal government has jurisdiction, state employees and political subdivision employees.

The law applies only to agreements entered into, modified, renewed or extended after March 14, 2012.  It does not apply to or abrogate agreements in effect on March 14, 2012.

The Legal Challenges to the Law

The challenges under the Indiana Constitution to the Right-to-Work Law assert: 1) denial of equal protection; 2) infringement of free speech; 3) an ex post facto law; and 4) it requires the union to provide services to individual employees without them having to pay for those services. The issue that the Indiana Supreme Court heard this week primarily involved Article I, Section 21 of the Indiana Constitution that provides:  “No person’s particular services shall be demanded, without just compensation.”

The Seventh Circuit considered similar arguments under federal law and the U. S. Constitution but did not consider or rule on the state constitutional issue.  In upholding Indiana’s law, the court said quite plainly:

But the legislative history and context of the TaftHartley Act make clear that the controversy is one that ought to be addressed and resolved at the level of legislative politics, not in the courts. The statutory question posed is whether Indiana’s new law is preempted by federal labor law, or threatens the Union’s First Amendment rights. The answer is an emphatic no. 

For now at least, Indiana employees will not have to join a union or pay dues or agency fees in order to work for an Indiana private employer.

Reference: Sweeney v. Pence, (7th Cir. Sept. 2, 2014).