Right to Work Becomes Law in Indiana

February 1, 2012 Right to Work Becomes Law in Indiana On February 1, 2012, Indiana became the 23rd state to enact “Right to Work” with Governor Mitch Daniels’ signature on House Bill 1001 after it passed the Senate by a vote of 28 to 22. This Right to Work law has been a long time coming and will likely spur a great deal of debate as the November elections approach.

The Key Provisions of the Indiana Right to Work Law

The law applies to private employers with one or more employees.

Governmental employers and employees are not covered.
A person cannot be compelled to become or remain a member of a labor organization or to pay dues or the equivalent of dues to a third party or charity as a condition of employment.
Any contract, agreement or practice between an employer and a labor organization that does compel membership or dues payments is unlawful and void.
A person who knowingly or intentionally, directly or indirectly violates the law commits a Class A Misdemeanor.
The law will be enforced by the county prosecuting attorney where a court can award actual damages or liquidated damages of $1,000, whichever is greater, plus other remedies.
The law does apply to a written or oral contract or agreement entered into, modified, renewed or extended after March 14, 2012.
The law does not apply to or abrogate a written or oral contract or agreement in effect on March 14, 2012.
The passage of Right to Work in Indiana will have many practical implications for employers that currently are unionized and for those that are not.

Important Practical Considerations for Indiana Employers

Employers with collective bargaining agreements (CBAs) should review notice of termination provisions of the CBA to ensure that the CBA and the Union Security Clause do not extend after CBA termination.
Employees may have to follow union bylaws to resign from the union. They may have to provide advance notice; be current on dues and assessments; consider possible loss of union pension when no longer a union member; and the employee may have to pay an initiation fee if the employee rejoins the union later.
The law may weaken an employer argument against joining a union – in other words, the cost of dues, fees assessments, initiation fees and union rules.
The law may make it easier for an employee to vote for union if it doesn’t cost anything.
The law may provide a possible opening for peer and union pressure tactics to sign authorization cards since it doesn’t mean they have to join the union.
Employees should be aware that the cards they may sign may be applications to become union members, which is permitted if voluntary and not compelled as a condition of employment.
Employers with CBAs should consider providing information to employees about the new Right to Work law.
Employers in negotiations for first time CBAs should consider backing away from any tentative agreement on a Union Security Clause since such clauses will now be illegal and void.
Employers in negotiations for first time CBAs should be prepared for union concessions to preserve Union Security Clause and get an early agreement before March 14.
Employers in negotiations may now lose some leverage in bargaining for strong Management’s Rights clauses in exchange for agreeing to Union Security and Check Off, as was often the case before Right to Work.
Be wary of any proposal that would allow reversion to Union Security or reopen the CBA if there is a change in the Right to Work law in the future.
Managers and supervisors should be educated about the implications of Right to Work so that they can effectively address employee questions and confront any union arguments.

The Right to Work law, as signed by Governor Daniels, is set out in full below.

HOUSE ENROLLED ACT No. 1001

AN ACT to amend the Indiana Code concerning labor and safety.

Be it enacted by the General Assembly of the State of Indiana:

SECTION 1. IC 22-6-6 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]:

Chapter 6. Right to Work

Sec. 1. This chapter does not apply to the following:

(1) An employee of the United States or a wholly owned corporation of the United States.

(2) An:

(A) employee; and

(B) employer; subject to the federal Railway Labor Act (45 U.S.C. 151 et seq.).

(3) An employee employed on property over which the United States government has exclusive jurisdiction for the purpose of labor relations.

(4) An employee of the state.

(5) An employee of a political subdivision (as defined in IC 36-1-2-13).

Sec. 2. This chapter does not apply to the extent that it:

(1) conflicts with; or

(2) is preempted by; federal law.

Sec. 3. Nothing in this chapter is intended, or should be construed, to change or affect any law concerning collective bargaining or collective bargaining agreements in the building and construction industry other than:

(1) a law that permits agreements that would require membership in a labor organization;

(2) a law that permits agreements that would require the payment of dues, fees, assessments, or other charges of any kind or amount to a labor organization; or

(3) a law that permits agreements that would require the payment to a charity or a third party of an amount that is equivalent to or a pro rata part of dues, fees, assessment, or other charges required of members of a labor organization; as a condition of employment.

Sec. 4. As used in this chapter, “employer” means:

(1) a person employing at least one (1) individual in Indiana; or

(2) an agent of an employer described in subdivision (1).

Sec. 5. As used in this chapter, “labor organization” means:

(1) an organization;

(2) an agency;

(3) a union; or

(4) an employee representation committee; that exists, in whole or in part, to assist employees in negotiating with employers concerning grievances, labor disputes, wages, rates of pay, or other terms or conditions of employment.

Sec. 6. As used in this chapter, “person” means:

(1) an individual;

(2) a proprietorship;

(3) a partnership;

(4) a firm;

(5) an association;

(6) a corporation;

(7) a labor organization; or

(8) another legal entity.

Sec. 7. As used in this chapter, “the state” includes:

(1) a board;

(2) a branch;

(3) a commission;

(4) a department;

(5) a division;

(6) a bureau;

(7) a committee;

(8) an agency;

(9) an institution (including a state educational institution as defined in IC 21-7-13-32);

(10) an authority; or

(11) another instrumentality; of the state.

Sec. 8. A person may not require an individual to:

(1) become or remain a member of a labor organization;

(2) pay dues, fees, assessments, or other charges of any kind or amount to a labor organization; or

(3) pay to a charity or third party an amount that is equivalent to or a pro rata part of dues, fees, assessments, or other charges required of members of a labor organization; as a condition of employment or continuation of employment.

Sec. 9. A contract, agreement, understanding, or practice, written or oral, express or implied, between:

(1) a labor organization; and

(2) an employer; that violates section 8 of this chapter is unlawful and void.

Sec. 10. A person that knowingly or intentionally, directly or indirectly, violates section 8 of this chapter commits a Class A misdemeanor.

Sec. 11. An individual who is employed by an employer may file a complaint that alleges a violation or threatened violation of this chapter with the attorney general, the department of labor, or the prosecuting attorney of the county in which the individual is employed. Upon receiving a complaint under this section, the attorney general, department of labor, or prosecuting attorney may:

(1) investigate the complaint; and

(2) enforce compliance if a violation of this chapter is found. In addition to any other remedy available under this chapter, if the department of labor determines that a violation or a threatened violation of this chapter has occurred, the department of labor may issue an administrative order providing for any of the civil remedies described in section 12 of this chapter. The department of labor may adopt rules under IC 4-22-2, including emergency rules under IC 4-22-2-37.1, to carry out its responsibilities under this chapter.

Sec. 12.

(a) If an individual suffers an injury:

(1) as the result of any act or practice that violates this chapter; or

(2) from a threatened violation of this chapter; the individual may bring a civil action.

(b) A court may order an award of any or all of the following to an individual who prevails in an action under subsection (a):

(1) The greater of:

(A) actual and consequential damages resulting from the violation or threatened violation; or

(B) liquidated damages of not more than one thousand dollars ($1,000).

(2) Reasonable attorney’s fees, litigation expenses, and costs.

(3) Declaratory or equitable relief, including injunctive relief.

(4) Other relief the court considers proper.

(1) cumulative; and