Today, in a 5 to 4 decision, the U.S. Supreme Court declined to extend its previous holdings regarding "fair-share" fees (fees that an employee who refuses to join a union is required to pay in lieu of union dues) to caretakers who are paid by the government to give home care to disabled individuals as part of a state program. According to the Court, in this setting, mandatory fair-share fees are unconstitutional. Harris v. Quinn.
Background
Theresa Riffey, Susan Watts, and Stephanie Yencer-Price are home
care providers, or "personal assistants," to disabled
participants in the Home Services Program, a Medicaid-waiver
program operated by the State of Illinois. This program is designed
to avoid the institutionalization of disabled citizens by
subsidizing the cost of home care for them. Riffey, Watts and
Yencer-Price each provide in-home care to a disabled individual who
hired them as personal assistants; they are paid for these services
by the State of Illinois pursuant to the Home Services
Program.
In the 1980s, personal assistants in the Home Services Program
attempted to unionize for purposes of collective bargaining with
the State of Illinois. The Illinois State Labor Relations Board
ruled they could not unionize because they were not employed solely
by the State, but also by the disabled participants who they
served. The Illinois legislature counteracted this ruling in 2003
by amending the Illinois Public Labor Relations Act to include
personal assistants working under the Home Services Program within
the definition of State employees.
In conjunction with this legislation, then-Governor Blagojevich
issued an executive order directing the State to recognize a
collective bargaining representative for Home Services Program
personal assistants if they were to designate one by majority vote,
and to then engage in collective bargaining with the State over the
personal assistants' employment terms, such as wages, that were
within the State's control.
In late 2003, a majority of the 20,000 personal assistants voted
to designate the Service Employees International Union (SEIU) as
their collective bargaining representative with the State, thereby
triggering the mandate of Governor Blagojevich's executive
order. Riffey, Watts and Yencer-Price then became part of this
collective bargaining unit, but they declined to become SEIU
members and so paid no union dues.
The SEIU and the State of Illinois eventually negotiated a
collective bargaining agreement that established the personal
assistants' pay rates. This agreement also included a
union-security clause requiring all personal assistants who choose
not to be SEIU members to pay "fair share" fees
representing their proportionate share of the cost of collective
bargaining and contract administration by the SEIU. In accordance
with the law of Illinois, which is not a right-to-work state, these
fair share fees are automatically deducted from the compensation
paid by the State to personal assistants who choose not to join the
SEIU, and the State remits these deducted fees to the
SEIU.
Riffey, Watts and Yencer-Price did not join the SEIU, but, in
accordance with the fair-share clause of the collective bargaining
agreement between the SEIU and Illinois, they are paying SEIU
fair-share fees by means of automatic deductions from their
bimonthly paychecks. In 2010, Riffey, Watts and Yencer-Price, on
behalf of themselves and a class of other personal assistants who
also chose not to join the SEIU, initiated a class-action lawsuit
against the Illinois Governor (Blagojevich's successor Pat
Quinn) and the SEIU, challenging the imposition of SEIU's
fair-share fees on them as a violation of their First Amendment
right to freedom of speech, freedom of association, and to petition
the government for a redress of grievances.
More specifically, this class action claimed that the Governor and
the SEIU are unlawfully compelling the Home Services Program's
personal assistants, by means of mandatory fair-share payroll
deductions that are remitted to the SEIU, to financially support
the SEIU as their state-designated representative for purposes of
speaking to, petitioning, and otherwise lobbying the State of
Illinois and its officials with regard to certain aspects of the
program, such as pay rates and health insurance coverage.
On November 12, 2010, a federal district court dismissed the
personal assistants' class action, holding that the SEIU's
mandatory fair share fees do not violate their First Amendment
rights. The personal assistants appealed this decision to the U.S.
Court of Appeals for the 7th Circuit, which addressed the issue of
whether it is constitutional to require the home-care personal
assistants to pay a fair-share fee to a union
representative.
In affirming the district court's decision and finding no
First Amendment violation, the Court of Appeals held that union
fair-share fees of this nature are permitted by Supreme Court
jurisprudence because the personal assistants are employees of the
State of Illinois – at least in those respects relevant to
collective bargaining – because the State controls some of
the economic aspects of the employment relationship such as
compensation and work hours (even though each disabled program
participant also qualifies as his or her personal assistant's
"employer" by virtue of controlling other aspects of the
employment relationship, such as hiring, firing, and
supervision).
The Supreme Court's Decision
In a 5-4 decision authored by Justice Alito, the Supreme Court
reversed the 7th Circuit's decision, declining to extend its
fair-share fee jurisprudence to these facts. According to the
Court, it is constitutionally impermissible for Illinois to compel
the home care personal assistants to associate with a union via a
collectively bargained fair share fee arrangement when the personal
assistants are public sector employees for only one purpose –
collective bargaining (and even then, the terms and conditions of
employment that can be negotiated on their behalf are limited under
the Illinois statutory scheme).
The Court held the personal assistants are private sector
employees for all other purposes because the persons for whom they
provide care control all the significant aspects of the employment
relationship such as hiring, firing and supervising. This being the
case, according to the Court, the First Amendment prohibits the
State of Illinois from collecting fair share fees from personal
assistants who do not want to join or support the union.
What This Means For Public Employers
To date, the Supreme Court has always upheld mandatory fair-share fee arrangements in the public-employment context. This decision represents a departure from this precedent in the "joint employment" context involving situations where workers are hired and supervised by someone other than the public employer who pays them. In these types of cases, the State must establish that a fair-share arrangement serves a compelling state interest that cannot be achieved by significantly less restrictive means, something Illinois was unable to show in this case.
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