The CapCon Guide: What to know about right-to-work in Michigan, post-repeal

Since the repeal of Michigan’s right-to-work laws, many people have been confused about the effect the repeal will have on their workplace. They have been left wondering whether they can be forced to join a union, and whether they must pay for a union’s political activities. The Mackinac Center has prepared the following overview of where the law stands now, to help Michiganders understand and exercise their rights in the workplace. 

It is important to be clear about what right-to-work does. In a right-to-work state, employees cannot be forced to pay a union what is known as an “agency” or “service” fee.

This fee represents the portion of dues that covers a union’s representational activities, such as negotiating contracts or representing workers in grievance hearings. It does not include the portion of dues that are devoted to political activity. Agency fees are typically 85%-90% of dues. 

With right-to-work repealed, some employees can be forced to pay these agencies fees. If these employees refuse to pay, they can be fired. Importantly, however, not all Michigan employees have lost right-to-work protections.

There are two types of employees: public sector and private sector. Public sector employees work for the government or one of its subdivisions. Common examples include school employees, university employees, state employees, and people who work for a county or other local government. Teachers in public schools, firefighters, police officers, and state and municipal employees are public sector workers.

Private sector employees, on the other hand, work for private companies. They include most manufacturing employees, employees in the hospitality industry, employees in the service industry, and some hospital employees. 

Whether an employee is a public sector one or private sector one is an essential distinction, but it isn’t always an easy one to make. Employees who are unsure about their status should speak to a supervisor for help.

Employees can also check their employer’s website, to see if they are subject to the Michigan Freedom of Information Act. If any portion of an employer’s website discusses FOIA, they are likely a public employer, and those who work for it are likely public employees. 

It is important for workers to understand whether they are public or private sector employees because that distinction determines what the end of right-to-work means for them. Public sector employees are not directly affected by the repeal of right-to-work, thanks to a 2018 Supreme Court case known as Janus v. AFSCME. 

In Janus, the Supreme Court recognized that everything a public sector union does, even bargaining for the terms of a contract, is inherently political. This because even negotiating wages and other terms and conditions of employment — the foundational activity of a union — sets government policy.

As a result, public sector workers cannot be forced to pay to support the union’s political speech. 

This means that public sector employees can’t be forced to join a union. They also can’t be forced to pay agency fees. 

Private sector employees are not so fortunate.

The First Amendment does not apply to private companies, and as a result, neither does the Janus decision. This means that private sector employees who had previously opted out of union membership can now be forced to pay agency fees.

This does not mean, however, that private sector employees can be forced to join a union as full members. Under Communications Workers of America v. Beck, a different Supreme Court ruling, a private sector employee is not required to become a full union member—only an agency fee payer.  

In summary:
•    Public sector workers are government workers, and have constitutional right-to-work protections thanks to Janus.
•    Private sector workers work for private companies, and with right-to-work repealed, must choose between paying agency fees and keeping their jobs.
•    Public sector workers cannot be forced to join a union or pay agency fees.
•    Private sector workers cannot be forced to join the union but can be forced to pay agency fees.

The repeal of right-to-work is unfortunate, not just for the state’s economy but for those individual workers who will be denied the right to chose whether to affiliate with a union. Right-to-work has enormous benefits, and helps enrich workers lives. Even though the law is repealed, we at the Mackinac Center remained dedicated to ensuring workers understand their rights and can make an informed decision about their options in the workplace. 

Stephen Delie is director of Workers for Opportunity at the Mackinac Center. Email him at delie@mackinac.org.