Michigan ‘Right to Work’ Repeal Hard to Copy, But Not Impossible

Michigan’s repeal of its “right to work” law is a history-making win for labor unions, but it’s one that will be tough to replicate in other states.

The legislation to repeal Michigan’s “right to work” law passed the legislature strictly along party lines and is set to take effect no later than March 31, 2024. Gov. Gretchen Whitmer (D) signed it on Friday.

The Michigan repeal is a rare development in the decades-long dispute over “right to work” laws, with business groups generally favoring the laws and labor unions opposing them. Michigan’s legislature is the first to undo a “right to work” law since 1965 when Indiana lawmakers repealed theirs, only to reinstate it in 2012. Missouri voters blocked a “right to work” law via ballot measure in 2018, a year after their legislature enacted it.

“I’m hoping this is a momentum change for other states to see that this can be done,” said Ron Bieber, president of the Michigan AFL-CIO, though he acknowledged overturning these laws is no easy feat.

When dealing with “right to work” laws, “the name itself is a misnomer, and that’s not by accident. It hasn’t got one damn thing to do with anybody’s right to have a job,” he said. “It’s a hard one, messaging-wise, to win with the public.”

Given the state’s historically strong union presence in auto manufacturing and other industry sectors, it’s no shock to see Michigan Democrats overturn the ban on mandatory union membership and dues payments now that they have a majority in the state legislature, said Dan Altchek, a labor and employment attorney with Saul Ewing LLP. The legislature first enacted that ban a decade earlier under a Republican majority.

“In 2012, it was sort of notable that a right to work law was actually passed in Michigan, which went against the grain of how we think about unionism and unions in that state,” Altchek said.

Business groups including the National Federation of Independent Business fought against the repeal effort in Michigan, arguing it would hurt companies and their ability to recruit new jobs.

“This is especially important because it sets a tone for our economic climate,” said Amanda Fisher, NFIB’s Michigan state director.

State Dynamics

Few if any other states have the same political dynamics and historical union strength as Michigan, making similar repeal legislation a heavy lift elsewhere.

“We’re pretty unique. We are the birthplace of many unions,” said Michigan state Sen. Darrin Camilleri (D), who sponsored the repeal legislation and said he, like many Michiganders, is the son and grandson of union auto workers.

Having a “right to work” law that’s only been around for 10 years also helped Democrats’ cause, he said. Many states have had their laws in place since the 1940s or ‘50s.

Until the legislation takes effect, Michigan is one of 27 states with a “right to work” law, and it’s the only one where Democrats hold a statehouse majority plus the governor’s office.

When the party briefly held this “trifecta” in Nevada and Virginia earlier this decade, the state legislative leaders and governors opted against or didn’t actively pursue a “right to work” repeal, amid stiff opposition from business groups. Although not among those 27, Colorado has a labor peace policy that sets a high bar for unions to be able to mandate contractually that all employees participate.

Democrats also have been unable to pass federal pro-labor legislation, including in the last Congress.

Still, unions and their supporters have had other kinds of wins on this front, Bieber noted, such as the Missouri ballot measure in 2018 and an Illinois ballot measure last year that succeeded in adding collective bargaining rights to the state constitution.

Despite Republicans currently holding state Assembly and Senate majorities, Wisconsin could be one future candidate to repeal or soften “right to work,” Altchek said. Like Michigan, it has a strong history of union activity and a relatively new law that was enacted in 2015.

“The politics of unionization are in flux right now,” he said, noting that union-member workers have become less reliable as Democratic voters than they were historically. This could eventually mean Republican lawmakers look for ways to support union members in their policy decisions, he added.

Even in Michigan, there’s no guarantee the policy won’t be reversed again. Local press outlets have reported some Republican strategists and business groups are having early-stage talks about launching a ballot question to ask voters to reinstate the “right to work” law or add it to the state constitution.

“There’s clearly the potential for a petition and for it to be on the ballot in 2024, and if that happens, flip a coin,” said Timothy J. Ryan, a labor and employment lawyer with Jackson Lewis P.C. in Grand Rapids, Mich. “A lot of it will depend on how the presidential race goes and who goes out to vote. Michigan is like the rest of the country. We’re split on a lot of issues, including this one.”

Union Security Clauses

While a political loss for business groups, the Michigan measure isn’t likely to bring any major, near-term changes or compliance duties for employers, said Felicia S. O’Connor, a labor and employment lawyer with Foley & Lardner LLP in Detroit. The biggest impact might be for employees in unionized workplaces who have opted out of paying dues, she added.

“What I would say to employers is expect that the next time you are negotiating a collective bargaining agreement, unions are going to try to get that union security clause included,” O’Connor said. These require all employees to join the union and pay dues.

For some unionized workplaces, contract changes to require that all covered employees pay dues won’t wait until the next contract negotiations. Many existing contracts contain a placeholder union security clause that was written to take effect if state law changes, Ryan said.

“Most unionized employers in Michigan existed for decades with a union security clause, and that’s just the way it was. We spent the last ten years without union security clauses,” Ryan added. “What’s old is new again.”

The change in law also could alter the dynamics of union organizing efforts, O’Connor said, ironically taking away one of the arguments that unions have used to help their case during Michigan’s “right to work” years.

“The pitch is something like: vote for us and see how we do. You’re not required to pay dues initially,’” she said. “Now the repeal sort of takes that tool away from the unions in the organizing context.”