Sunday, December 09, 2012

The Dishonesty of "Right-to-Work" Legislation


The Michigan legislature just rammed through “right-to-work” legislation making it illegal for a collective bargaining agreement to require employees to pay union dues.  When this happened I emailed my mother, who voted for Governor Rick Snyder, saying I told you so when I warned against doing so.  She responded that she didn’t believe that people should be forced to join a union to get a job.
My mother is a solid liberal in general and if she doesn’t understand why that’s the wrong way to look at it, there is clearly more explanation needed.  So I’ll give it a try.
There is no such thing a right-to-work in the United States.  Such a concept is incompatible with the basic principles that govern our employment law.  Under this framework no one has ever, will ever, or even can ever be forced to join a union in order to get a job.  It’s not possible.
In US law, employment is a contractual relationship into which both parties freely enter.  There is no coercion involved short of actual slavery.  It doesn’t matter how badly someone needs obtain income or how great the power imbalance between management and labor there is.  You are not forced to do anything.
One place you can see this is in regards to pre-employment drug testing.  If there were any sort of right-to-work, this would constitute a 4th Amendment violation.  Instead, the courts have repeatedly held that there is no coercion in requiring a prospective employee to take a drug test.  No one is forced to do so.
If there were any sort of right-to-work, I would not have spent the last five years unsuccessfully applying for jobs for which I am abundantly qualified.  If it existed it would mean that someone would have had to hire me.  If it existed then my boss couldn’t fire me from that position without cause.
A very high percentage of those who push “right-to-work” legislation when it comes to union membership vehemently oppose all other ways in which the concept might be applied.  The difference is that all of those other implications of a right-to-work would empower employees at the expense of management.  They would provide protections to workers.
That’s not at all what these people want.  So they reject any argument that there is a right-to-work.  They firmly believe that there is no such thing.  They hold that belief all the way up to the point where a right-to-work can be interpreted in a way that will empower employers, suppress wages and contribute to inequality in society.  That’s the point where they suddenly become devoted advocates of a right-to-work, ignoring (but not discarding) all of their previous opposition to the idea.
In truth, honest libertarians should be as opposed to the sort of legislation Michigan is adopting.  Libertarians think of themselves as die hard supporters of the right for people to enter into whatever contractual relationships they desire.  “Right-to-work” legislation cuts against that.  It forbids employers from entering into certain kinds of contracts with their workers.  Most American libertarians joyfully abandon their most fundamental principle and loudly support “right-to-work” legislation.
Well, okay then.  If you want to push laws that create a right-to-work, let’s go for it.  In reality there are a number of significant downsides to actually implementing a regime that enshrines such a right, but I’ll call your bluff.  I’ll support your attempt.  We’ll see if we can pass it.  Even if we don’t, hopefully we’ll conduct some useful education of people along the way.
But my support is conditional on you actually meaning it.  If you want to enact a right-to-work then that’s what we’re going to shoot for.  We will forbid requiring payment of union dues.  We will forbid pre-employment drug tests as an unreasonable search.  We will make sure that everyone who wants a job actually gets one.  We will protect workers from losing their jobs unless their behavior creates a reasonable cause for firing.  
If all you mean is that you want to define “right-to-work” in a way that doesn’t really create any such thing then count me out.  If you want to dishonestly claim the phrase for a very narrow purpose while ignoring everything else that it would mean, then you deserve to lose.  Either own all of the legal principles that it would entail or admit that you don’t really believe in a right-to-work at all and that all you want to ensure is that workers will be paid less and be perpetually insecure.  

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