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Tuesday, December 10, 2013

What Does It Really Mean to Be in a Right to Work State?

In a Right to Work state an employee's employment is at the will or whim of the employer unless there is a contract such as an individual Employment Agreement or a union Collective Bargaining Agreement.  That is technically correct, but widely misunderstood in its practical application.

Among my liberal friends this is a controversial topic.  The idea that in a Right to Work state an employee can be fired for any reason at any time is unconscionable and violates the dignity of the worker.  For my conservative friends who run businesses there is no controversy: they believe the law entitles them to make any decision they choose.  Both are wrong.

At the heart of this misunderstanding is one huge exception to Right to Work: it does not apply to state or federal discrimination or harassment laws.  These laws are the majority of risk in employment. While retaining or terminating an employee may be at the complete discretion of the employer, if that discretion is abused such that the employee is discriminated against based upon some protected class status then the employee has full recourse through state or federal agencies and through the courts.

If you are employed in a Right to Work state you have the same rights regarding equal treatment under state and federal anti-discrimination law as you would in any other state.  If you employ or supervise people in one of these states you have about as much protection under Right to Work as if you rolled yourself in bubble wrap and jumped off a bridge.

When making employment decisions I would advise you the same way I advise my clients: to have an Employee Handbook, follow it, and never let Right to Work enter into your thinking.  The real definition of Right to Work: "A false sense of security that causes you to write large checks."