01/13/2020 by Anne G. Bibeau, Esq.
Virginia Senate Majority Leader Dick Saslaw (D-Fairfax) has introduced a bill to repeal a key provision of Virginia’s right to work law. Since 1947, the law in Virginia has been that no one can be compelled to join a union (Va. Code § 40.1-60) or to pay union dues against his or her will: “No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees or other charges of any kind to any labor union or labor organization.” Va. Code § 40.1-62. This provision against compelled union dues is the core of Virginia’s right to work law – a law that is generally misunderstood, often confused with “employment at will” (an unrelated legal doctrine), and frequently maligned by unions and their supporters. Many observers credit the right to work law as one of the reasons that Virginia is considered the top state for businesses and that Virginians enjoy a high average household income.
The bill Senator Saslaw introduced in the General Assembly on January 7, 2020, would allow employers and unions to compel employees to pay a portion of union dues—which the bill refers to as “fair share fees”—even if the employee does not support the union and does not want to join the union. The so-called “fair share fees” would be a pro rata share of the union’s dues attributable to the union’s costs for collective bargaining, administration, enforcement of the collective bargaining agreement, representation of employees before public bodies and in grievances, and union governance and administration. Only the portion of union dues attributable to the union’s political activities, lobbying, organizing, charity, donations, and community services would be excluded. The “fair share fees” would be up to 60% of the full union dues required for union members.
When employees have a choice whether to pay “fair share fees”—also called “agency fees”—they generally opt not to. In 2018, the U.S. Supreme Court in Janus v. AFSCME ruled that for government employees, mandatory union fees violate their First Amendment rights. Following that decision, more than 200,000 agency fee payers stopped paying; two major public sector unions reported losing more than 90% of their agency fee payers. The Janus decision, however, would not prevent the application of Senator Saslaw’s bill to non-government employees and employers.
Senator Saslaw’s bill would force employees, against their will, to give money to unions. The bill would encourage unions to organize Virginia workplaces because if they can persuade a simple majority of a workforce to vote for the union, they can compel the entire workforce to pay the union. Many view this as a benefit to the unions at the expense of workers that will make Virginia less attractive to businesses.
Businesses who support Virginia’s right to work law should call upon their representatives in the General Assembly to oppose this bill and ask Governor Northam, who has opposed repeal of the right to work law, to stop this legislation. In the meantime, with this threat lurking on the horizons, union-free Virginia businesses should take steps to remain union free. The experienced labor law attorneys at Vandeventer Black are available to assist businesses in those efforts.
About the Author:
Anne Graham Bibeau is the firm’s Labor & Employment Law Practice Group Manager.
She focuses her practice on labor and employment law, alternative dispute resolution, commercial litigation, tax litigation, and the emerging hemp industry. She advises clients on the Fair Labor Standards Act (FLSA), discrimination and harassment, the Family and Medical Leave Act (FMLA), disability law, labor relations, employment agreements, and other labor and employment matters.
She also serves as an arbitrator and mediator and is an American Arbitration Association (AAA) Employment Law Arbitrator. For more information, please contact Anne at firstname.lastname@example.org.