High Court in ‘Mountain State’ Makes Way for New Right-to-Work Law



The West Virginia motto goes that “mountaineers are always free.” Following recent state legislative and court action, residents in the state will now count a “right to work” among their liberties.

The West Virginia Supreme Court of Appeals recently lifted a preliminary injunction that had blocked the state’s new right-to-work law, which prohibits conditioning employment on union membership or on payment of union dues or fees. Morrisey v. W. Va. AFL-CIO, 2017 BL 325948 (W. Va. 2017).

The case represents a major change for a state where union density is still higher than average and where per capita income is the second lowest in the nation.

The legislature enacted the new law, titled the “Workplace Freedom Act,” in 2016. Several unions sued to challenge its enforcement, and in February 2017, a state circuit court imposed a preliminary injunction until the court could rule on the unions’ claims that the law is unconstitutional. The state then appealed the injunction order to the West Virginia Supreme Court of Appeals.

The unions’ first argument before the high court was that the law violates their freedom of association under the West Virginia constitution, but the court found that nothing in the law prevents employees’ voluntary choice to associate with a union or pay union dues. At least 27 other states have some form of right-to-work law, some of which have been around since the passage of the Taft-Hartley Act in 1947, and the unions didn’t point to any authority rejecting a right-to-work law based on freedom of association, the court said.

A second argument was that the new law is an unconstitutional taking of union property. On this point, the court observed that a property interest protected by due process must come from a private contract or from state law. Because the new law affects only future agreements and not existing labor contracts, the unions have no property interest that the legislature could have taken.

Though the result is in line with 70 years of precedent upholding similar right-to-work statutes throughout the country, the case marks a significant historical departure for a state whose labor conditions were once the focus of Mother Jones and where some of the country’s earliest organized labor struggles played out in misty mountain coal fields.

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