3 Myths Supervisors in “Right to Work States” Can’t Afford to Believe!

3 Myths Supervisors in “Right to Work States” Can’t Afford to Believe!

As of this writing, there are 24 of the United States who have adopted Right to Work legislation.  Despite the ongoing debate surrounding these laws, it’s common for supervisors in Right to Work states to have misperceptions about the extent to which these laws affect their relationship with their employees.  In the following, I seek to dispel the most common myths I’m confronted with as a human resources consultant and trainer in a “Right to Work” state. If supervisors acted upon these pervasive false assumptions, they’d do so at the risk of incurring direct costs associated with litigation and indirect costs associated with having a negative reputation and organizational culture.

What are “Right to Work” laws?

In a literal sense, working in a “Right to Work state” has very little to do with an employee’s “right to work”.  While laws vary from state to state, the most controversial element of Right to Work laws is that they give employees the “right to work” in an organization where a union is present, without being compelled to pay union dues or fees to the labor union.  This applies even when a union is bound by an exclusive bargaining rights contract (versus a member-only contract), which requires the union, by law, to expend resources to represent all employees and bestow upon all employees the benefits of negotiations, whether an employee pays them or not.

Before the enactment of Right to Work legislation, employees had the right to pay a “fee” instead of union dues.   This fee was meant to prevent an employee from having a portion of their union dues go toward activities that the employee may disagree with, such as political campaigns.  The fee is meant to compensate the union for the representation the employee must receive from the union by law, under an exclusive bargaining rights contract.  The Right to Work legislation prevents employees from having to pay both the fee as well as union dues.

Both the opponents and supporters of these laws agree that the Right to Work laws are designed to decrease the financial resources of unions. Both sides differ, at least rhetorically, in the effect they claim that these laws have on the employee’s working conditions as well as the effect these laws have on the local economies directly impacted by Right to Work legislation.

Truthfully, there are reams of scientific data that both support and debunk the rhetoric of both sides of the Right to Work debate.  Data mining and fact checking are beyond the scope of this article.  Supervisors need to know the following myths about Right to Work laws and  how little they affect the relationship between a supervisor and their employees!

MYTH #1:  Right to Work states don’t have labor unions.

It may be true that states with Right to Work laws aren’t considered “union friendly”, but they still have unions and employees still have the right to seek union representation. Supervisors should be trained to understand that when Governors like Nikki Haley of South Carolina say “We don’t have unions”, as she did on August 27^th, 2013, to a gathered crowd of onlookers, she speaks rhetorically, not literally.  She is using more colorful language to say, “We do have unions, but our laws give them less incentives to come here.”  In fact, South Carolina has about 30 labor unions representing almost 4 percent of the state’s population! When supervisors take the rhetoric they hear literally, as many do, they wrongfully believe that their company is immune to unionization efforts. Supervisors must be aware of what they are lawfully allowed to do during union organizing activity, as delineated in the National Labor Relations Act (NLRA) and by the NLR Board.

Supervisors should also be aware that the National Labor Relations Act (NLRA) protects all employees, whether the employee is a member of a union or not. The NLRA establishes that employers can’t interfere with their employees’ rights to “bargain collectively” through a representative of their choosing, which can be a co-worker. It also guarantees the basic rights of private sector employees to engage in concerted activity for mutual aid and protection.  For example, the NLRA has been invoked to protect a non-union employee’s right to complain about their supervisor to coworkers on social media like Facebook.

All supervisors, whether they are in Right to Work states or not, should receive training on the full scope and breadth of the NLRA to minimize legal exposure and prevent violations with respect to union and non-union employees.

 MYTH #2:  Right to Work laws give a supervisor the right to fire anyone they want to at any time.
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It’s common to hear people claim that their boss can fire them at any time without notice “because” they work in a “Right to Work state”.  Sometimes, disgruntled employees proclaim they can’t make a grievance about an illegal activity at work because it’s a “right to work state”.   In the minds of many, the Right to Work laws have become synonymous with a completely different concept that has absolutely nothing to do with Right to Work laws, the “employment at-will doctrine”.

Some are surprised to learn that in all states but one (Montana), employees are presumed to be employed at-will, which means that employers can terminate the employment relationship with employees for a good reason, a bad reason, or no reason at all.  Only Montana has put into place a statutory exception dictating that after a probationary period an employer in the private sector must have just cause, or reason for termination.  Despite the assumption that most employees are “at-will”, there are various laws and exceptions to this doctrine that limit an employer’s right to terminate in certain circumstances.  For example, it’s against the law to fire someone for going away on military leave or to jury duty. Many jurisdictions and states differ in the extent to which they enforce different statutes and recognize various exceptions.

Exploring each exception to the at-will doctrine is beyond the scope and intent of this article.  The right to terminate employees, as well as various limitations on those rights, have nothing to do with living in a Right to Work state.  The same rights occur in every state, independent of the states Right to Work status!

Myth 3:  Right to Work states  usually favor supervisors over employees in lawsuits. 

All employees in every state are legally bound to adhere to federal and state employment laws, independent of whether or not they are in a Right to Work state.    It’s worth noting that supervisors should not assume that courts in Right to Work states favor supervisors more during employment litigation.  For example, according to the bipartisan National Conference of State Legislatures, the courts in the Right to Work state of South Carolina recognized more limitations on an employer’s right to terminate than New York courts, which do not have Right to Work legislation.  This is true specifically when analyzing the extent to which state courts have recognized the following exceptions to an employer’s right to terminate:  implied contracts, covenant of good faith and fair dealing, and public policy exceptions.

Supervisors should be knowledgeable about the various employment laws that affect their day-to-day decision-making.  Right to Work laws only impact the rights of employees where a union is present, and even then, some unions, such Railroad workers unions, are exempt.  Federal and state laws, as well as court precedence in how those laws have been applied in various contexts, affect the relationship between an employee and their supervisor.  Supervisors in Right to Work state’s don’t  have any more rights over their employees than those who don’t work in Right to Work states!

Conclusion:

Supervisors need to know that living in a Right to Work state doesn’t make them immune from having to follow various laws designed to protect union and non-union employees. If supervisors in Right to Work states believed and acted upon the myths outlined in this article, they’d put their organizations at risk of costly litigation and violations.  To minimize exposure to these risks, supervisors should be trained on the scope and breadth of the various employment laws impacting the decisions they make on a daily basis.  While training can minimize legal exposure and costs, it provides other benefits as well.   Among them is a positive work environment that allows the organization to compete for top employees in the labor market!    ©Denise Scotti-Smith 2014.  All rights Reserved.