A West Virginia judge has invalidated portions of a state statute that allowed private-sector employees in union-represented jobs to avoid paying union dues, fees, or other assessments for collective-bargaining representation or instead pay an equivalent amount to a third-party charity.
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Kanawha County Circuit Judge Jennifer Bailey issued the long-awaited ruling last week in litigation challenging the constitutionality of West Virginia’s right-to-work law. The ruling was limited to the “agency fee” portions of the statute and applies only to private-sector workplaces.
Significantly, Judge Bailey left in place the portions of the statute that make it unlawful to require employees to become or remain members of a union to retain their jobs.
An appeal is expected. In fact, Judge Bailey stayed the effective date of her ruling for 30 days to allow for an appeal. So, West Virginia employers may be able to simply wait and see what happens. Much is yet unknown.
Next Steps for WV Employers
In the wake of Judge Bailey’s decision, you should ask counsel to review your labor agreement to ensure it continues to comply with the law. Under the ruling, your agreement may not require employees in a unit of represented workers to join or remain members of a union. It may require them, however, to pay certain union dues, fees, or assessments to the union even if they aren’t members. (Note: Federal law will still protect workers’ rights to refuse to pay for union political action.)
Those of you who negotiated changes to your labor agreements that eliminated union security clauses altogether, including dues requirements, may be able to simply stand (or rely) on the agreed-upon language until the arrangement expires, regardless of Judge Bailey’s ruling.
We’re aware, however, many employers have negotiated contingent language in their union contracts that may require changes when the new ruling goes into effect. For example, you may suddenly have an obligation to begin or resume withholding union dues, fees, or other assessments.
Bottom Line
These are uncertain times for West Virginia employers. With good advice from counsel, however, you should be able to comply with the law as well as the relevant contract and wage and hour rules.
Chris Slaughter, a member of the West Virginia law firm Steptoe & Johnson PLLC, is a contributor to West Virginia Employment Law Letter. You can reach him at chris.slaughter@steptoe-johnson.com or 304-526-8140.