West Virginia Court Unblocks Right-to-Work Law

By Marla N. Presley, Douglas G. Smith, Mariah H. McGrogan and Zachary J. Mueller © Jackson Lewis October 12, 2017
West Virginia Court Unblocks Right-to-Work Law

West Virginia's right-to-work law will be enforceable beginning Oct. 15. The West Virginia Supreme Court of Appeals, the state's highest court, has dismissed a lower court's preliminary injunction blocking implementation of the legislation. Morrisey v. West Virginia AFL-CIO, No. 17-0187 (Sept. 15, 2017). The law prohibits both compulsory union membership and compulsory dues for union representation.

The Act

In February 2016, the West Virginia legislature passed the Workplace Freedom Act over the veto of then-Governor Earl Ray Tomblin.

The act provides that a person, as a condition of continued employment, may not be required to:

  • Become or remain a member of a labor union.
  • Pay union dues, fees, assessments, or similar charges.
  • Pay any charity or third-party dues, fees, assessments, or other charges.

The act also prohibits a union and an employer from entering into a collective bargaining agreement that compels all employees to join the union.

The act applies to any contract entered into, modified, renewed or extended after July 1, 2016.

A person who knowingly requires another person, as a condition of continued employment, to become or remain a member of a labor union or to pay dues, fees, assessments, or similar charges to the union, any charity, or a third-party is guilty of a misdemeanor, punishable by a fine of $500-5,000. Civil penalties also attach for violations or threatened violations of the act.

Notwithstanding the act, however, when a union assumes representation of a workplace, federal and state laws require the union to fairly represent all employees, regardless of their union membership.

Unions Sue

Four days before the act was to take effect in 2016, several labor unions sought an injunction in the Circuit Court of Kanawha County against the act's enforcement. The labor unions argued, in part, that the act was unconstitutional as it violated their associational rights, represented an unconstitutional taking of property without compensation and violated their liberty interests by requiring them to expend their labor for nonunion employees without the ability to charge a fee. The unions argued that if the law took effect, they would be unable to bargain for compulsory membership and fees in new collective bargaining agreements without violating the law.

Lower Court Grants Injunction

The Kanawha County judge enjoined enforcement of the act, finding the labor unions had demonstrated both (1) a likelihood of success on the merits of their claims and (2) irreparable harm if the act became effective on July 1, 2016.

The West Virginia Attorney General, a named defendant in the Kanawha County case, petitioned the West Virginia Supreme Court of Appeals to overturn the injunction.

Supreme Court Decision

In considering the propriety of the injunction, the Supreme Court was mindful that "twenty-seven other states have adopted right-to-work laws similar to West Virginia's, and the unions have not shown a single one that has been struck down by an appellate court." Therefore, the court found the unions had not demonstrated a likelihood of success on the merits of their constitutional claims and overruled the temporary injunction. It further found that the Kanawha County judge had abused her discretion in granting the injunction.

The court remanded the case for the lower court to conduct a final hearing on the merits of the parties' contentions.


Under West Virginia appellate procedure, the decision does not take effect until the mandate issues, which terminates the Supreme Court's jurisdiction. Unless shortened or enlarged by court order, the mandate will issue 30 days from the date of the opinion.

In this case, as the opinion was released on Sept. 15, the case should be remanded on Oct. 15, and the injunction should be dissolved that same day. The Supreme Court has encouraged the circuit court to move quickly on the remaining issues before it.

Marla N. PresleyDouglas G. SmithMariah H. McGrogan and Zachary J. Mueller are attorneys with Jackson Lewis in Pittsburgh. © Jackson Lewis. All rights reserved. Reposted with permission.



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