Happy Labor Day week! Here’s a post from Nate Ring at The Nevada Labor Law Blog about the difference between right to work and employment at-will
In my experience, when it comes to employment and labor law, no two terms or concepts are confused more than right to work and at will employment. It seems that every week, I encounter someone who believes that (a) the terms are interchangeable or (b) one is actually the other. This is true for friends, family, potential clients, and even other attorneys who do not practice employment law (actually, I have had some attorneys who claim to practice employment law that have also made mistake (b) above).
This post is not about my qualms with either of these legal doctrines. I am setting aside my issues with the term right to work, its utterly misleading name and the negative effects it is really intended to have on labor unions. I am also setting aside my concern with at will employment and the reality that it gives far more power to those with capital than those who provide labor. Ok, maybe I am not completely setting these aside.
I will first address right to work, its background, meaning and effects. I will then discuss at will employment, its background, meaning, and effects. I will focus on the two as set out in Nevada law.
Right to Work
At its base, right to work states an employee cannot be required to pay any dues or fees to a labor union that represents him. This is true despite the union negotiating a collective bargaining agreement on his and other employee’s behalves and providing grievance and arbitration representation to that employee and others. Right to work allows a selfish employee the ability to obtain benefits at no cost to him personally. It is in reality a freeloader or freerider law.
Right to work laws are in effect in 27 states. Nevada is one of those states. The genus of right to work laws is the Taft-Hartley Act of 1947. This law fundamentally shifted the balance in labor relations set under the 1935 Wagner Act against labor unions and in favor of employers. For purposes of this topic, it permitted states to create right to work laws. Section 14(b) of the Taft-Hartley Act made this permissible.
Right to work laws have long been supported by business interest groups and they have been successful in getting all states in the deep south and many in the Midwest to pass such laws. NRS 613.230 through 613.300 contain Nevada’s right to work law. The law took effect in 1953 and during the 1950s, Nevada voters defeated three initiatives to repeal it. According to the Nevada Legislative Counsel Bureau, the Nevada Legislature has considered and rejected at least ten measures that have sought to amend or repeal the right to work law.
What is the real purpose of a right to work law? The real purpose is quite simple, business groups want to drain labor unions of dues money by allowing freeloaders to obtain negotiated benefits without payment. Labor unions are required to provide representation but cannot charge for the tasks they perform for members of a bargaining unit. Business hope that eventually the labor union will crumble under the weight of providing services with no remuneration and the businesses will be free to run roughshod over employees.
Union density is much lower in right to work states. Wages and benefits are also lower in right to work states. More troubling is the fact that the rate of workplace injuries and immigrant labor abuses are higher in right to work states. A lot of ills befall working people because of right to work laws.
At Will Employment
At will employment is a judicially created doctrine that is not enshrined in Nevada statutes. At will employment simply states employers are free to terminate employees at any time, without notice or reason and employees are free to leave employment at any time and for any reason, also without notice. An employer cannot, however, terminate an employee for a discriminatory reason (i.e. race, sex, sexual orientation, religion) or a reason that violates Nevada public policy.
Nevada is not alone in being an at will employment state—nowhere near it. In fact, 49 states have at will employment. The lone exception is Montana, which requires just cause for termination of an employee following the employee’s completion of a probationary period.
In American Bank Stationery v. Farmer,106 Nev. 698, 799 P.2d 1100 (1990), the Nevada Supreme Court held at will employment is presumed and an employee can only rebut this presumption with proof of an express or implied employment contract.
In my experience, courts are loath to find exceptions to the at will employment doctrine. Employees often believe their employee handbook creates a contract—it often does not! I have seen and heard of cases in which employers have employee handbooks and policies that run into the hundreds of pages, but contain one or two disclaimers stating “Regardless of what is contained in this employee handbook, no promise of employment for a specific term is being made, and your employment is at will.” The employers have even followed the policies and procedures contained in the handbook fully except for the single act of terminating the specific employee, but courts have not found an implied contract in that employee handbook. Proving an exception to at will employment can be very difficult unless an employee has a written express contract for her own employment or the termination violated a public policy of the state.
Right to work and at will employment are very different legal doctrines that are often confused for one another. I hope this post helps to dispel some of the confusion and interchangeable use of the terms that happens daily.