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Update on Wisconsin's Right-to-Work Law

On April 8, 2016, a Dane County Circuit Court judge issued a decision on Wisconsin’s Right-to-Work Law (WRTWL), concluding that it violated the “taking” without compensation provision of the state constitution. A final order will be issued by the judge in the near future. Before the case is appealed, the circuit court may deal with related issues of whether to issue an injunction enjoining enforcement of the WRTWL and/or whether to stay the decision pending the outcome of the appeal. Injunctive relief has not been sought by the plaintiff labor organizations up to this point. At this time, the WRTWL remains in effect, pending the circuit court’s issuance of a final order.

The Attorney General has indicated the State will appeal the decision. The Attorney General is considering bypassing the Court of Appeals and asking the Wisconsin Supreme Court to decide the appeal. Whether the circuit court decision is enforceable against other parties and in other circuit courts in Wisconsin is an open question while the appeal is pending. Litigation is pending in other Wisconsin courts, which also raise the taking issue and related questions of WRTWL validity.

It will be some months before the legality of the WRTWL is determined in final fashion. Similar right-to-work laws have been upheld in many of the 24 other states which have them. The Indiana Supreme Court recently upheld the constitutionality of Indiana’s right-to-work law, finding that there was no unconstitutional taking of property.

The lawfulness of labor contract Union Security provisions in Wisconsin will be determined by the court system. While the validity of the WRTWL is in the appeal process and based on the circuit court decision, unions are likely to claim that Union Security provisions of Wisconsin labor contracts may lawfully be enforced at this time, and that employees in workplaces with Union Security clauses must pay union dues or face being discharged. Employees have an important decision to make regarding whether to stop paying union dues or resume dues payments while the appeal is pending. Employers will have to decide what information they communicate to employees and may also have to decide how to handle authorizations signed by employees after being told by the union that the WRTWL was invalid. Union enforcement of a labor contract Union Security provision while the appeal is pending would put both the employee and employer in particularly difficult positions. Legal counsel should be consulted before the employer decides to terminate an employee under a labor contract Union Security clause.

Employer communications about WRTWL employee rights should take this legal development into account. In addition, this development will likely complicate collective bargaining in Wisconsin over WRTWL issues in the near term.

©2021 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume VI, Number 105
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About this Author

Thomas Scrivner, Michael Best Law Firm, Labor and Employment Attorney
Partner

Tom’s practice includes all aspects of labor law and employment litigation. He represents clients in a broad range of industries including construction, health care, printing, education, manufacturing service providers, and nonprofits. Tom is a frequent speaker before industry gatherings on topics such as wrongful discharge, employment litigation, work force reduction, drug and alcohol testing, disability and family medical leave laws, and sexual harassment.

414-225-4965
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