Right-to-Work Laws and Union Membership in the Public and Private Sectors

August 09, 2023

The share of those employed in the US who are union members hit a record low last year, in keeping with a decades-long downward trend. Laws and lacking enforcement mechanisms that make it harder for workers to form and keep their unions have contributed to the decline in union membership. This decline has implications for worker power and inequality. One specific type of legislation — “right-to-work”— has been held up as a particular bellwether for unions. 

What are right-to-work laws?

The term “right-to-work” can be somewhat misleading, as right-to-work laws do not solely pertain to the right to work or be employed. What right-to-work laws really do is allow union-represented workers to avoid financially supporting the negotiation and enforcement of the collective bargaining agreements for their workplace.

Union contracts in the US are legally required to cover everyone eligible to join the union, regardless of whether those workers choose to join the union officially as members. Those who opt not to become members are still covered by and benefit from the union contract. Unions, meanwhile, must by law represent all workers covered by the contract, regardless of whether those workers are union members. 

Historically, represented nonmembers paid what are called “fair share fees.” These fees are collected to reimburse the union for the time and resources required for negotiation and dispute resolution. Right-to-work laws prohibit unions from collecting fair share fees, potentially creating a free-rider problem — meaning workers who don’t join the union by law receive all the benefits and protections of a union contract without contributing to its costs. 

Which US states have right-to-work laws?

At this point in 2023, 26 US states have right-to-work laws on their books (Figure 1). Michigan made headlines earlier this year when it became the first state in almost six decades to repeal its right-to-work statute. 

Figure 1

In practice, right-to-work laws directly impact the private sector; public sector unions have been prohibited from charging fair share fees since the Supreme Court’s landmark 2018 ruling in Janus v. AFSCME. This ruling effectively made every state a right-to-work state in the public sector (Figure 2), regardless of individual state laws.

Figure 2

How do right-to-work laws affect union membership?

Right-to-work laws potentially threaten union financial security by encouraging free riders to avail themselves of union resources without paying for them. As the unit’s exclusive bargaining agent, unions have a duty to fairly represent everyone covered by the contract, including those who are not union members. Upholding this duty can be expensive. If a nonmember were to face disciplinary action, for example, the union would be required to represent them to ensure that the terms of the contract were upheld. Were the dispute to escalate, the union would be responsible for covering attorney fees and the like. By starving the union of resources, free riders make it harder for the union to effectively deliver — and therefore make the union less effective and less popular. 

Union membership tends to be lower in states with right-to-work laws on their books (Figure 3). In 2022, the overall union membership rate in states with right-to-work laws was well under half the rate in states without such laws. Multiple studies have found significant correlations between union membership rates and right-to-work laws, even after controlling for other factors. In right-to-work states, nonmembers make up a larger share of those employed in unionized workplaces. The denominator is also much smaller, however, because a smaller percentage of workers are represented by unions in right-to-work states. Moreover, even in right-to-work states, the vast majority of those who work in union shops elect to become union members. 

Figure 3

The exact nature of the relationship between right-to-work laws and union density is less simple than it may seem at first glance. Four years after Janus v. AFSCME rendered state right-to-work laws superfluous in the public sector, the union membership gap between states with and without those laws is larger in the public sector than in the private sector. And while the share of union-represented workers who are not union members is higher in right-to-work states, union-represented nonmembers make up a smaller share of all employed in right-to-work states because there are fewer union shops in those states (Figure 4). Represented nonmembers also don’t account for the full difference in union density between states with right-to-work laws and states without such laws. If union-represented workers opting not to become union members accounted for the entirety of the membership gap between right-to-work states and non right-to-work states, one should be able to add the percentages in Figure 4 to those in Figure 3 to close the gap.  

Figure 4

If covered nonmembers — the ‘free riders’ that drain union resources— don’t directly account for the difference in density, what does? One possibility is that the proliferation of covered nonmembers has sapped unions of the resources they need to do new organizing, making it harder for them to replace the members they lose when union shops close. Another potential explanation is that right-to-work laws are serving as shorthand for a state’s willingness to favor employers over workers, in a way that shapes employers’ expectations and conduct regardless of what the law actually says. This is something that could be difficult to capture as a confounder in some of the empirical studies that have zeroed in on right-to-work laws as a specific driver of union density.

While it may not always be a direct driver of union contraction, the anti-labor message that right-to-work sends must be taken seriously. Legislation such as the Protecting the Right to Organize (PRO) Act would supersede state right-to-work laws, at least as they apply to the private sector. Public sector workers must also be permitted to organize and retain their unions. The Public Service Freedom to Negotiate Act would constitute an important first step toward ensuring that the government workers who provide essential public services can collectively bargain in the first place. However, other legislation should go further and explicitly challenge the Janus v. AFSCME decision.

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