In a ruling entered late on Wednesday, February 27, 2019, Kanawha County, West Virginia, Circuit Judge Jennifer Bailey issued a long-awaited ruling in the litigation challenging the constitutionality of West Virginia’s right-to-work law. Judge Bailey’s ruling was limited to the “agency fee” portions of the statute and applies only to private sector workplaces. Essentially, she has invalidated those portions of the statute which permit employees in union-represented positions to avoid paying union dues, fees, or assessments to unions who represent them in collective bargaining, or would provide for paying equivalent amounts to a third-party charity instead of a union. Significantly, Judge Bailey left in place the portions of the statute which make it unlawful to require employees to become or remain members of a union in order to retain their jobs.

There will almost certainly be an appeal of Judge Bailey’s ruling, and the appeal will take months to resolve. In fact, Judge Bailey anticipates an appeal and stayed the effective date of her ruling for 30-days to allow for an appeal. It is possible that either Judge Bailey or the Supreme Court could stay the effectiveness of her order until final resolution of the appeal—in which case you may be able to simply wait and see what happens. Much is yet unknown. 

What must employers do to ensure they are in compliance with the current state of the law in West Virginia and have a plan if it changes?

Most importantly, you should have your labor agreement reviewed by counsel to ensure it complies with the law as it stands in the wake of Judge Bailey’s ruling if it becomes effective. Under the Bailey decision, while a labor agreement may not require employees in a unit of represented workers to join or remain members of a union, the agreement may require them all to pay certain union dues, fees or assessments to the union even if they are not members. Note that federal law will still protect the right of workers to refuse to pay for union political action.

Employers who negotiated changes to their labor agreements which eliminated union security clauses altogether, including dues requirements, may be able to simply stand on the negotiated language until the agreement expires regardless of Judge Bailey’s ruling. However, we are aware that many employers have negotiated contingent language in their union contracts which may result in a change in their obligations based upon this new court ruling. If the ruling becomes effective, they may suddenly have an obligation to begin or resume withholding dues, fees, or other assessments, and they should consult with counsel to ensure they are following the law and the contract, as well as wage payment laws, correctly.

These are uncertain times for employers. However, with good advice, you can easily identify your risks and opportunities and make good business decisions that position you for success.