Twenty-two states have statutes or state constitutional amendments that are meant to ensure that joining or paying fees to a labor union is not a requirement of lawful employment. Such provisions are known as "right-to-work" laws, and if Michigan chooses to adopt one, the state should enact language that is likely to achieve the provision’s purposes while minimizing the opportunities for legal challenges that seek to narrow or nullify the law.

The right-to-work language presented here — see Page 15 or the back cover — is written as a model state constitutional amendment, not as a statute. One value of a right-to-work provision is the message it sends about the state’s business climate, and given Michigan’s labor history, this message would be stronger if it were placed in the state constitution. Further, work is central to human existence, and key rights related to this basic concern are proper subjects of the state’s social contract.

In preparing model language for a right-to-work amendment in Michigan, the case law from all 22 right-to-work states was reviewed. This review suggested a number of elements that should be part of a right-to-work law in Michigan.

  • A clause preventing discrimination against nonunion workers in employment is fundamental to the nature of right-to-work laws, but a clause preventing discrimination against union members is also recommended here. This union nondiscrimination clause would ensure both that the state does not run afoul of the U.S. Constitution’s "equal protection" clause and that the amendment provides basic fairness given the requirements of federal labor law. This union nondiscrimination clause could conceivably be pre-empted by federal law, thereby providing some opportunity for a legal challenge to the amendment, but other clauses in the model language — specifically a clause regarding "severability" — would discourage such a challenge.

  • Some state courts have ruled that public employment must be explicitly included in a right-to-work law in order for right-to-work protection to be extended to government workers. This amendment therefore specifically includes public-sector employment.

  • In the absence of a right-to-work provision explicitly banning the payment of any union fees as a condition of employment, one state court held that in filing a grievance, a nonunion worker would have to pay a significant portion of the union’s attorney fees and the costs related to the hearing. The model language includes a clause expressly prohibiting payment of any fees or expenses to a union as a condition of employment.

  • The most recent pertinent challenge to a state right-to-work law contended that enough of the law was pre-empted by existing federal labor statutes that the law should be nullified in its entirety. The model language safeguards against such a challenge by explicitly stating that any portion of the amendment not pre-empted remains in effect — i.e., that the amendment is "severable."