Hunton Employment & Labor Perspectives

On February 12, 2016, the West Virginia legislature overrode Governor Earl Ray Tomblin’s veto of the Establishing West Virginia Workplace Freedom Act and in doing so became the 26th state to enact “right-to-work” legislation.

Right-to-work laws prohibit employers from requiring employees to join a union or risk termination.  Specifically, they prohibit union security agreements – agreements between employers and labor unions that establish whether employee union membership and payment of union dues and fees may be made conditions of employment.

Right to work laws do not, however, affect a union’s duty to provide fair representation.  Unions must still represent the interests of and work towards implementing any applicable collective bargaining agreement on behalf of every member in a bargaining unit, regardless of whether or not the bargaining unit member is a dues-paying union member.  In doing so, unions are required to act impartially towards non-union members.

The new West Virginia legislation provides that:

Any agreement, contract, understanding or practice, either written or oral, implied or expressed, between any labor organization and an employer or public body which provides for the exclusion from employment of any person because of membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor organization or employee organization of any kind is hereby declared to be unlawful, null and void, and of no legal effect.

The law provides for criminal penalties, including fines of up to $5,000, and administrative remedies.  In addition, employees injured as a result of a violation can recover compensatory and punitive damages as well as injunctive relief.  The legislation will become effective on July 1, 2016.

With the passage of the Establishing West Virginia Workplace Freedom Act, West Virginia joins the following right-to-work states:  Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming.