Editorials

Judge Finds Indiana Right-to-Work Law Unconstitutional

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

Judge John Sedia, of the Lake County Superior Court, has held that Indiana’s new right-to-work law violates the state constitution.  Article I, Section 21 of that constitution states that “No person’s particular services shall be demanded, without just compensation.”  As the judge explained, the constitutional problem comes from the intersection of the state right-to-work law and federal labor law.  In brief, federal labor law requires that unions represent all workers in a bargaining unit equally.  But the Indiana law – like all right-to-work laws – allows workers to refuse to pay dues to the union for that representation.  Hence, federal law requires unions to provide services for which state law enables employees to refuse to pay.  (Or, as the judge put it, the Indiana law makes it “a criminal offense for a union to receive just compensation for particular services federal law demands it provide to employees.”)

Of course, the problem here is not unique to Indiana.  As Catherine Fisk and I discuss in a forthcoming paper, the intersection of federal labor law and all state right-to-work laws results in a requirement that unions provide services to employees for free.  That’s a dynamic that should not be allowed to stand anywhere.

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