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West Virginia Supreme Court Upholds State’s Right-to-Work Law

April 22, 2020

In a victory for worker freedom and the merit shop philosophy, on April 21, the West Virginia Supreme Court upheld the constitutionality of the Workplace Freedom Act, the state’s right-to-work law, in a 4-1 decision.

“Once again, the courts have sided with West Virginia workers by protecting their ability to make their own choices about union membership without fear of losing their paycheck,” said Bryan Hoylman, president and CEO of ABC West Virginia. “This is another victory for worker freedom and stands against the efforts by organized labor to fill their coffers without actual accountability.”

ABC West Virginia was deeply involved in the fight, with lawyers from ABC West Virginia member Jackson Kelly PLLC, alongside ABC West Virginia’s general counsel, Jack Merinar of Steptoe & Johnson PLLC, filing an amicus brief in support of the law on behalf of chapter members.

This decision is another reinforcement of right-to-work laws that are currently in force in 27 states and have been upheld repeatedly in courts around the country. Most recently, Kentucky enacted its own right-to-work policy in 2017.

The yearslong court battle began in 2016, when the AFL-CIO brought suit against the state in the Kanawha County Circuit Court and sought an injunction to stop the law before it became effective. The plaintiffs achieved a short-lived victory under a decision by Judge Jennifer Bailey in early 2017 to grant this injunction, which was later reversed by the West Virginia Supreme Court. From there, Judge Bailey again heard arguments around the law and overturned key aspects early last year. This led the case back to the Supreme Court, which heard oral arguments on the law in January 2020. Attorney General Patrick Morrisey defended the law on behalf of the state.

In their final decision, Justice Evan Jenkins wrote the opinion for the majority, with Justices Gregory Howard and John Hutchinson concurring. Justice Margaret Workman was the sole dissenting vote, concurring in part and dissenting in part.

Justice Workman referenced the recent U.S. Supreme Court case, Janus v. AFSCME (2018), writing that due to the U.S. constitutional implications of that case, it would be unlikely that opposition to parts of the West Virginia right-to-work law around a ban on agency fees—which are dues collected by a union from nonunion members—would be successful. However, she felt the West Virginia constitution should have “higher standards of protection” than the U.S. Constitution.

ABC will continue to update members about right-to-work states in Newsline.

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