NASHVILLE, Tenn. (WKRN) – When Tennesseans head to the polls on Election Day, one of the items on their ballots will be a constitutional amendment adding a “right to work” provision into the state’s founding document.
But what is the right to work?
“The idea is, in a right-to-work state, if I go work at Company X, and they have a union, I have a right to not join that union,” said Jon Harris, a Nashville employment lawyer with Ogletree Deakins. “The company cannot fire me because I don’t join the union. When you hear ‘right to work,’ that’s talking about unionization.”
“We already have a statute that makes us a right-to-work state,” Harris said. “What the constitutional amendment would do is to put that in the constitution.”
Proponents of the amendment and right-to-work laws say they keep states competitive economically, while opponents say the provisions hamstring a union’s ability to do their job representing workers.
What right-to-work doesn’t do, however, is say you can be fired from a company in Tennessee for no reason. That is a tenant of the doctrine of at-will employment.
“They’re two pretty different concepts,” Harris told News 2. “At-will employment is the idea that you can be fired for a good reason, a bad reason or no reason at all. That’s separate from the concept of a right-to-work state.”
States are automatically considered to be at-will unless a state’s legislature passes a law stating otherwise.
But there are limitations to at-will employment.
“In theory, you could be fired for any reason; practically, employers don’t do that,” Harris said.
Throughout his career, Harris said clients have asked about the at-will employment doctrine when seeking advice on human resource (HR) issues, which makes up about half of his practice, but he cautions companies about relying on it.
“We have clients say, ‘Hey, we’re an at-will state; can I fire somebody for any reason I want to?’ And the answer is, ‘Yes, but you can’t fire them for an illegal reason,’” he said.
Employers are still barred from firing employees for discriminatory or retaliatory reasons, including for race, sex, country of origin or disability, as well as if they were acting as a whistleblower. Those limitations, Harris said, as well as financial considerations, weigh heavily in the decisions whether to fire employees.
“There are a lot of different reasons why someone can sue you, and so practically speaking, even though we’re an at-will employment state, employers pretty much never fire someone for any old reason at all or no reason,” he continued, “because they know they could be sued under a theory of discrimination or retaliation, and they will need to be able to justify to a jury why they ended this person’s employment.”
Additionally, Tennessee workers cannot be disciplined or fired at-will for being called into military service, for voting in elections, for exercising their right of association, for wage garnishment, for filing a workers’ compensation claim or for being called for jury duty.
Reciprocally, employees in Tennessee are free to leave a job at any time for any reason or no reason at all with no legal consequences, according to the Tennessee Department of Labor and Workforce Development.
According to the National Conference of State Legislatures, only Montana is not an at-will employment state. The rest of the country maintains their at-will employment status.
According to the National Right to Work Legal Defense Foundation, Tennessee is one of 27 states with right-to-work provisions. States with right-to-work laws include Georgia, Idaho, Iowa, Indiana, Kentucky, Louisiana, Michigan, Nevada, North Carolina, North Dakota, South Carolina, Texas, Utah, Virginia, West Virginia, Wisconsin and Wyoming.
States with right-to-work language in their constitutions are Alabama, Arkansas, Arizona, Florida, Kansas, Mississippi, Nevada, Oklahoma and South Dakota.
Polls will be open from 7 a.m. to 7 p.m. Nov. 8.