July 1, 2014
Burwell v Hobby Lobby justifiably received much attention on Monday here and throughout the Internet. The attention given to Hobby Lobby might have led some to overlook “the other 5-4 decision” yesterday that also had great implications for the rights and protections of low-wage workers, especially for women and people of color.
Harris v. Quinn
Predictably, the United States Supreme Court’s decision yesterday in Harris v. Quinn was never going to be only about the First Amendment. Certainly, the Court decided that the First Amendment prevents States from requiring workers in home health care who are not “full” public employees to pay dues for the cost of grievance administration and collective bargaining. In his opinion for the Court, Justice Alito wrote: “The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the Union.” The case was about more than free speech doctrine though; it also exemplified the particular antipathy of a majority of the Court toward unions that represent government employees.
Harris v. Quinn involved in-home care workers who did not want to pay any dues to the union that represented them and all home care workers in bargaining with the State of Illinois, the Service Employees International Union (SEIU). All labor law involving state government employees is legislated by the individual states. Some states, like Virginia and North Carolina, ban public sector employee bargaining completely. While others, such as Illinois and California, allow unions to represent employees in a particular workplace or bargaining unit and charge dues to all employees in that unit for the agency function of bargaining and administering contracts. The Court has long held that workers can only be required to subsidize the representation they receive, not the union’s political or social goals.
Precedent with a Long Pedigree: The Constitutionality of Agency Fees
For nearly 60 years, the process for workers in a bargaining unit who did not want to be full members of the union at their workplace was to opt out of full dues and pay only the cost of grievance administration and collective bargaining, to prevent nonmembers from getting higher compensation and contractual protections without paying for them, what economists call the “free rider problem.” While no state is required to have an agency fee arrangement, since Abood v. Detroit Teachers in 1977 the constitutionality of such a law was not in issue.
In Harris, the health care workers sued the State of Illinois claiming that the agency shop arrangement that had been legislated violated their First Amendment rights of free speech and association by requiring them to pay the agency fee. The Seventh Circuit Court of Appeals rejected their constitutional claims, largely on the basis that the claims were not ripe for review and the home care workers were indisputably employees of the state. In October 2013, though, the Supreme Court agreed to hear the plaintiffs’ petition for review, which was a broader attack on whether a State may “compel personal care providers to accept and financially support a private organization as their exclusive representative . . . .” Plaintiffs’ Petition for Cert., Harris v. Quinn, (i).
Justice Alito’s Writing on the Wall
The Court’s decision came down along predictable ideological lines, with Justice Samuel Alito writing the Court’s opinion on behalf of Chief Justice John Roberts, Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. In a case two years earlier, Knox v SEIU Local 1000, Justice Alito had questioned whether agency fee arrangements, which were not in issue in that case, were constitutional at all. In Harris, Justice Alito continued his assault in dicta on nearly 60 years of precedent that upheld agency fee arrangements as constitutionally permissible, but apparently did not have five votes to overrule in this case. Justice Alito focused on the fact that the home health care workers in this case were not truly public employees as the workers in the earlier cases had been, and thus the agency fee precedents were inapplicable to their constitutional claims. In sum, they did not have to pay any dues to the union that has a duty to represent them without hostility or discrimination because of their nonmember status.
The dissenting opinion, written by Justice Kagan on behalf of Justices Ginsburg, Breyer and Sotomayor, focused on the Court’s misapplication of the test of “employee” status and its ignorance of the “joint employer” test that would allow for the “customers” of the home health care workers and the State both to be the employers of the workers. Justice Kagan heavily critiqued Justice Alito’s “gratuitous” criticism of prior precedents that he apparently would like to overrule, but could not muster a majority to do so in this case. Nevertheless, there will likely be many more opportunities to do so, with both private and public sector labor relations remaining one of the most polarizing issues in society today.
As predicted, the decision will send shock waves in every state legislature that allows a bargaining arrangement for home health care workers (19 including Illinois). In states that are so called “right to work” states, that is, where protection for free riders is enshrined in state law, there will be no change, because there is no agency fee relationship. Further, in a few states (such as Virginia and North Carolina) government employees are not even allowed to bargain with public entities. Much in the same way that the Supreme Court in the early 20th Century upset legislative judgments with Lochnerian philosophy about “freedom of contract,” the Court has paved the way to make the entire country “right to work,” in derogation of any pretense of the states as sovereigns or as laboratories of innovation, which historically have had little purchase when states have experimented with affirmative legislation or other progressive experimentation.
Harris v. Quinn is also another in a long line of losses for public employee unions at the Supreme Court, which I have written about recently. Despite the popular belief that public employee unions are inordinately powerful politically, the fact remains that almost half of state legislatures limit or prohibit collective bargaining by government employees, recently even in historic strongholds like Wisconsin, Michigan and Indiana. Even when able to obtain legislation like that at issue in Harris v. Quinn, public employee unions have suffered a string of losses at the Supreme Court over the last decade.
A political path remains after Harris v. Quinn that States can follow to ensure home healthcare worker bargaining arrangements pass constitutional muster. Nonetheless, as many of these workers are among the most politically vulnerable in society – low-wage earners, women, people of color and noncitizens – they will lack the political power to easily change legislation for their benefit and the benefit of their clients or customers, who are alone, disabled, elderly and ill. In Harris v. Quinn, the Supreme Court has once again marginalized these employees, and the people for whom they work.