On July 1, 2016, the State of West Virginia will become the 26th state to enact right-to-work legislation, prohibiting employers from requiring union membership, or the contribution of union dues as a condition of employment. Calling it a "momentous occasion," the Republican majority of both chambers of the state legislature overrode the veto of Democratic Governor Earl Ray Tomblin on Friday, February 12, 2016, putting the West Virginia Workplace Freedom Act (Act) on track to take effect this summer.

To understand the significance of right–to-work laws, one must understand three related concepts: (1) the Closed Shop (the employer only hires union members); (2) the Union Shop (the employees are union members at hire or agree to become union members as a condition of employment); and (3) the Agency Shop (employees may remain non-members of the Union, but agree to pay of a fee for collective bargaining as a condition of employment).

Right-to-work legislation was a product of the 1947 Taft Hartley Act, which amended the original National Labor Relations Act making the Closed Shop unlawful. The Taft-Hartley Act allowed Union Shop and Agency Shop arrangements in collective bargaining agreements, but provided that individual states could enact legislation that would make even those arrangements unlawful for employees working in that jurisdiction.

For many years, such legislation (called "right-to-work laws") was limited to states in the Southern and Western part of the country. However, over the last four years, the movement has become somewhat re-energized, and similar legislation was passed in Indiana in 2012, in Michigan in 2013, Wisconsin in 2015 and now in West Virginia. With this most recent enactment, right-to-work states are now in the majority for the first time.

The new West Virginia Act prohibits a person being required, as a condition of employment, to: (1) become or remain a member of a union; (2) pay any dues, assessments or other charges to any labor organization; or (3) make any similar type of payment to a third party in lieu of such payments. Similarly, any contract, written or oral, entered into, modified, renewed or extended after June 30, 2016 that attempts to require such prohibited action becomes legally null and void.

A violation of the Act comes with criminal penalties of a misdemeanor conviction with fines of $500 to $5,000 per occurrence. There are also significant civil liabilities if any person suffers an injury as a result of a violation, including reinstatement, compensatory and punitive damages, and attorneys’ fees. While there are no civil penalties for unions insisting on mandatory dues deduction for all employees in negotiation, it would be an unfair labor practice for the union to make, what will become, such an illegal proposal.

Employers with represented workforces in West Virginia should be aware of the Act and what they will need to do to comply with the new law starting July 1, 2016:

  • Any language in existing labor agreements or labor agreements entered into on or before June 30, 2016 that requires union dues deduction or union membership will remain effective for the term of that agreement. Any labor agreement entered into, modified, renewed or extended on or after July 1, 2016 should not contain such language.
  • Employers will need to have procedures in place for affected employees that seek to revoke dues deduction authorizations (revocation will not be automatic and, instead, will require an affirmative act by an employee). To that end, employers should make forms available to employees so that the employees as well as new hires can document their authorization to have union dues deducted, to have no union dues deducted or to change from one status to the other.
  • Labor negotiators should be cognizant that future contracts should avoid such language.