United States: Kentucky's Right-To-Work Law Upheld By State Supreme Court

A bitterly divided state Supreme Court upheld Kentucky's right-to-work law by a 4-3 vote yesterday, cementing Kentucky's status as one of 27 states in the country to have such a law on the books. Although the law was originally signed in January 2017 and immediately took effect, unions in Kentucky resisted accepting the reality of right-to-work and were banking on this litigation to overturn law. Now that the legal challenges have been denied, employers should ensure they are familiar with right-to-work, as the law could have an impact on your workplace.

What Does Right-To-Work Mean?

Before we analyze the litigation, it's helpful to ensure a complete understanding of what the law says. Right-to-work laws generally make it unlawful to require a person to be or become a union member, or to pay union dues, as a condition of initial or continued employment. The name comes from the idea that people should be allowed to work without having to financially support organizations or causes that they do not morally support.

Union advocates make the counterargument that employees who work in unionized workplaces should have to share the cost of union representation. It is important to note that right-to-work laws do not prevent people from joining or supporting unions, they just prohibit requiring them to do so.

Brief History Of Right-To-Work In Kentucky—And Beyond

In 2012, Indiana became the 23rd right-to-work state in the country—the first state to do so in 12 years—and started a flurry of right-to-work legislation. Following in its footsteps, Michigan, Wisconsin, and West Virginia enacted such laws in the next several years. And on January 9, 2017, Kentucky became the 27th state to put right-to-work into effect. (As an aside, another Midwestern state passed a right-to-work law later in 2017 when Missouri's state legislature took action, but state voters rejected the law in a recent election and wiped it off the books.)

Like other laws of its kind, Kentucky's right-to-work law prohibits any employer (public or private) from compelling a person to join or remain a union member as a condition of being hired or remaining employed. It also prohibits requiring any employee to pay dues, fees, assessments, or similar charges to a labor organization, and prohibits requiring any employee to make payments to charities in lieu of payments to labor organizations.

Kentucky's law has a few special provisions that apply only to public sector employees. For example, it prohibits deducting dues and similar payments from public sector employees' pay without written consent, and allows them to easily withdraw consent. It also prohibits public sector employees from engaging in strikes or other work stoppages (private sector employees remain free to do so).

The law does not apply to labor agreements entered prior to January 9, 2017, but it does apply to extensions and renewals of such contracts made from that date forward. The law expressly prohibits local governments from enacting inconsistent legislation, so you will not see cities, counties, or other municipalities passing their own measures contradicting right-to-work.

Governor Bevin has touted the success of the new law as being instrumental in the state's economic recovery. As he stated yesterday, "with $13.5 billion invested in the Commonwealth since the passage of HB 1 in 2017 and business increasing by 40 percent this year, we are already reaping the benefits of this transformative legislation." Further, the Kentucky Chamber of Commerce has stated that the law, which had been one its priorities for decades, has resulted in a record number of economic development commitments in the last two years.

Union Challenge To The Law Rejected By Supreme Court

Unions did not agree with these assessments, however, believing that right-to-work was harmful to their membership and to their organizations. Shortly after it went into effect, union members Fred Zuckerman (Teamsters Local 89) and William Londigran (Kentucky State AFL-CIO), challenged the new law by arguing that it violated several state constitutional provisions. Their lawsuit was tossed out by a lower state court in September 2017, but the state Supreme Court agreed to hear the challenge without review by the state Court of Appeals. After over a year of briefing and legal argument, the court issued the 4-3 ruling in favor of the law on November 15.

Writing for the four-justice majority, Justice Laurence VanMeter knocked aside the four main arguments brought by the union advocates:

  • First, the unions argued that the law violates the equal protection protections put into place by the state constitution. However, the majority said that the state had a sufficient justification for passing the law—namely, the goal of shoring up the state's economy, attracting new employers and new jobs, and increasing overall business—and that was enough to satisfy the constitutional test. After all, the majority reasoned, the federal Taft-Hartley Act expressly permits states to pass right-to-work laws, which means that it would only examine the state's justifications with the lightest level of scrutiny.
  • Next, the court rejected the contention that the law was a "special" piece of legislation that had been outlawed by a 19th-century revision to the state constitution, disagreeing with the premise that it singled out a certain class for harsher treatment than others. As the majority stated, "the act applies to all collective bargaining agreements entered into on or after January 9, 2017, with the exception of certain employees covered or exempted by federal law. With the exceptions required by federal law, it applies to all employers and all employees, both public and private."
  • Third, the unions argued that they would be forced to represent non-members without compensation, which violated the constitution's "takings" clause. But the Supreme Court disagreed. The unions would still be compensated by being designated as the exclusive representative of whatever bargaining unit they represented, it said, acting on behalf of all of the workers in that unit. The majority noted that this gave unions a "tremendous" amount of power over the wages, benefits, and working conditions afforded their membership, which cast doubt on any "takings" challenge.
  • Finally, the unions contended that the labeling of the law as an "emergency" act—which permitted it to take effect immediately and not wait the traditional 90 days before implementation—was not proper. Once again, the Supreme Court swept aside the challenge. By justifying the need for immediate passage and implementation because it would attract new business and investment, the state provided all the justification necessary to warrant the "emergency" designation and survive the challenge.

What Does This Mean For Kentucky Employers?

Now that the law has been given the final green light, it is time to ensure full compliance. If you are or are about to negotiate a union contract, you must ensure that the final agreement does not run afoul of the right-to-work law. This includes existing contracts that are being renewed, renegotiated, or extended. If you currently have union contracts that include mandatory union membership and dues payment, you should make a note to remove such language when the contract comes up for renegotiation.

You should also be aware that even though the "union shop" is now prohibited, many contracts will still have dues-checkoff provisions which require you to withhold union dues from employees' paychecks in accordance with written dues authorization cards signed by employees. It is important for employees to be informed about their rights to revoke their written authorization cards at least annually. You should also educate your supervisors and higher-level managers regarding the law to ensure no one violates employees' rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions