Over the past decade, more than a dozen states have forced independent contractors who are paid through Medicaid to join public-sector unions. In 2003, Illinois unionized home healthcare workers and gave the Service Employees International Union the right to collect compulsory fees from the home health care workers paychecks. This, we argue in a friend of the court brief filed jointly with the Center for Constitutional Jurisprudence and the Pacific Legal Foundation in the U. S. Supreme Court, infringes home healthcare workers First Amendment right of association and the right to petition the government.
In 2003, a majority of the approximately 20,000 Rehabilitation Program personal assistants voted to designate SEIU Healthcare as their collective bargaining representative with the State. The Union and the State negotiated a collective bargaining agreement, including a fair share provision requiring all Personal Assistants who are not members of the Union. . .to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.
Pamela Harris and others provide in-home care to disabled individuals through Medicaid-waiver programs run by the Illinois Department of Human Services and by the Illinois Division of Developmental Disabilities. Personal care workers whose pay is reimbursed by Medicaid (through the State of Illinois), claimed that the “fair share provision of their collective bargaining agreement that requires them to pay a portion of union dues, which are not allocated for political purposes, violated the First Amendment. By compelling payment (whether a part of the union or not) to support collective bargaining, they argued that their speech was compelled through the union.
The Disabilities Program plaintiffs successfully rejected unionization and were not subject to fair share fees, but feared that may change at any time, but the Seventh Circuit dismissed the Disabilities Program plaintiffs’ claims for lack of jurisdiction because they were not ripe for adjudication.
Harris and the others allege that a collective bargaining agreement that requires Medicaid home-care personal assistants to pay a fee to a union representative violates the First Amendment. The Seventh Circuit held that personal assistants in the Illinois home-care Medicaid waiver program were State employees who may be compelled to support legitimate, non-ideological, union activities germane to collective-bargaining representation. They argue that home health care workers are not employees of the state, but instead are employed by the individual patient, and that the forcible unionization of home healthcare workers serves none of the compelling purposes for public-sector unionization that have been articulated by the Supreme Court, promoting labor peace and eliminating free riders.
In our friend of the court brief we argue that neither aim is promoted by a system, such as Illinoiss, in which employees work in different locations and in which the customer, the disabled person paying the homecare worker through a Medicaid disbursement, controls every crucial aspect of the employment relationship, including hiring and firing. The Illinois law only allows collective bargaining for higher wages and benefits and is only about speech, petitioning the government for higher wages and benefits, and does not address workplace conditions at all. Public sector bargaining is a political process that concerns the allocation of scarce government resources. And there is no meaningful distinction between an employee group lobbying for a salary increase, a business lobbying for a government loan or tax credit, or a taxpayer association lobbying for lower taxes. All of these groups seek to influence government to accept their policy preferences and advance their particular goals. There is no basis for granting one group the power to compel financial support from citizens who oppose those policy goals. Public sector bargaining is indistinguishable other lobbying activity, and thus use of non-members money infringes long-recognized constitutional protections against compelled speech and compelled association.
In a series of earlier cases, the Supreme Court had held that workers who did not wish to join a union could nevertheless be required to pay an agency fee based on that portion of union dues that the union expended for collective bargaining activities. The Courts reasoning in those cases was that the policy underlying the National Labor Relations Act, which provides for a union to be the exclusive representative of workers in a particular employee unit, is to preserve labor peace and that non-union members benefit from the unions collective bargaining with the employer on wages, benefits and working conditions, and should not be allowed to be free riders. In several of those cases, the Court also recognized the encroachment of forced payment of dues or fees on non-members rights of free speech and free association, and sought to prescribe safeguards to minimize that intrusion, such as requiring unions to account for their use of agency fees collected from non-members and to refund any amounts collected in excess of those expended on collective bargaining. In our brief we show how these safeguards have been ineffective because they have been evaded by unions on a regular basis and because state and federal government agencies have been derelict in not enforcing the safeguards.
To read our brief, click here.