Today is the last day of the Supreme Court’s term, and it left two of the most difficult decisions for the end. The 5-4 decision in Harris v. Quinn, was obviously contentious and puts sensible limits on public sector unions. Here are the key facts. The Medicaid program provides funding for certain ill patients to hire home health care assistants. Under the program, those assistants are typically relatives, and they are paid salaries by the State for their care giving. For years this uncontroversial program worked reasonably well, and the Illinois Labor Relations Board considered the health care aides to be privately, not state, employed. While their pay came from the State (really the federal government via the State), all other aspects of the employment relationship, the hours worked, the activities performed, were under the direct control of the program recipients, the sick patients.
In 2003 Governor Rod Blagojevich issued an Executive Order decreeing that the home health care workers were State employees. He wanted them to unionize and be required to pay union dues. The Illinois General Assembly followed up and made his Order a law. Then the SEIU organized the State’ health care workers and began to collect mandatory union dues from all of them. Workers had to join the union. According to the Plaintiffs, three home health care workers who object to the dues, they amount to about $3.6 million/year.
They three brought a class action lawsuit contending that the Illinois law violated their First Amendment right not to compelled to support an organization they disagree with (the union). This argument would not succeed in a private sector company, but when the employer is a State, the First Amendment applies. They lost their suit. The lower courts held that mandatory public sector unionization including dues collection were permitted under a Supreme Court decision from the 1970’s called Abood v. Detroit Board of Education.
But the Supreme Court disagreed. The five more conservative justices joined an opinion by Justice Alito which distinguished Abood. It does not apply to “partial public” or ”quasi-puiblic” employees such as the three home health care aides who are employed, in most respects, by their patients, not the State. The opinion strongly suggests the Court should revisit Abood because it gave short shrift to the First Amendment problems with compulsory public sector unionization. Justice Alito noted that the law allowing federal government employees to unionize allows those employees who choose not to join the union to be exempted from union dues.
Hopefully we will see more challenges to public sector unionization. The Court may decide to reverse Abood and declare all compulsory public sector unionism a violation of the First Amendment. At least S.E.I.U. will not be losing millions of dollars in dues from Illinois, and one hopes any other states which have unionized their home health care workers.