Right to Work laws, which prohibit requirements that workers pay union dues as a condition of employment, have been enacted in twenty-eight states and the territory of Guam. Since my last blog on this subject, dated February 22, 2017, the constitutionality of another state Right to Work law has been upheld by a federal appellate court. On July 12, 2017, the United States Court of Appeals for the Seventh Circuit rejected two union arguments: (1) that Wisconsin’s private-sector Right to Work law is preempted by the National Labor Relations Act to the extent that the state law prohibits forcing workers to pay dues or fees to unions for collective-bargaining purposes to keep their jobs, and (2) that, if not thus preempted, the law effects an unconstitutional taking of union property without just compensation in violation of the Fifth Amendment[1].  The Seventh Circuit followed its own earlier decision in Sweeney v. Pence, 767 F.3d 654 (7th Cir. 2014) (2-1 decision), which upheld Indiana’s “substantively identical” Right to Work law. The court noted that the union “points to no intervening developments in statutory, Supreme Court, or even intermediate-appellate-court law between Sweeney and today that undermine Sweeney’s validity.”[2].

In the meantime, other union lawsuits challenging the constitutionality of the Idaho, Kentucky, West Virginia, and Wisconsin Right to Work laws continue, with all but West Virginia’s law still enforceable. Oral argument in the state court case against the Wisconsin private-sector law was held in the Wisconsin Court of Appeals on May 2, 2017, and the State’s appeal of the preliminary injunction against West Virginia’s law is set for September 5, 2017, in the West Virginia Supreme Court.

Updated brief summaries of these cases are available from NRTW.

[1] Operating Eng’rs Local 139 v. Schimel, No. 16-3834, 2017 WL 2962896 (7th Cir. July 12, 2017), aff’g 210 F. Supp. 3d 1088 (E.D. Wis. 2016).

[2] Schimel, slip op. at 4-5