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Home health care worker with older couple.
Workers who provide care in the home, be it child care or health care, have traditionally been excluded from a host of labor protections, including union rights and minimum wage and overtime protections. In recent years, though, that has started to change. Unions have been able to organize home care workers in several states after the states designated them as public employees, and their wages have risen and working conditions have improved as a result. But the Supreme Court struck directly at that last week in its Harris v. Quinn decision.

The anti-union National Right to Work Legal Defense Foundation brought Harris v. Quinn in the name of Pamela Harris, an Illinois home care worker who didn't want to be part of a union. The thing is, she didn't have to be part of a union. No one does. What she had to do was pay a fair share fee, covering the union's costs for directly representing its members in the workplace—bargaining, contract administration, things like that—but excluding any union political expenditures. In fact, unions carefully audit their expenditures to be sure that fair share fee-payers only pay the costs of direct representation. But Pamela Harris didn't want to pay even that, either, and there's a powerful, well-funded set of organizations like the National Right to Work Legal Defense Foundation eager to ensure that people like her don't have to pay their fair share fees. That's what so-called right to work laws are about at the state level, and it's what Harris v. Quinn was about. And the Supreme Court agreed, ruling that workers who provide care inside private homes don't count as public workers—don't really count as workers very much—and cannot be compelled to pay for the benefits they receive from the union's work. So Pamela Harris will continue to get the higher pay and other advances that SEIU has negotiated:

The union contract under attack in Harris v. Quinn raises wages from $11.55 to $13.00 this year. It requires the state to pay for safety and health training, and to pay for gloves for the home health care workers. The contract also establishes a labor-management committee and a grievance procedure.

She just won't pay for it. Instead, the dues that other workers pay will also have to cover her and anyone else who decides to freeload.

As Sarah Jaffe points out, Harris v. Quinn has a potentially wider reach and more in common with the higher-profile Hobby Lobby decision than you might think:

Retail sales and home healthcare work are two of the three fastest-growing jobs in this country. That’s an important consideration when looking at the decisions the Supreme Court handed down today in Harris v. Quinn and Burwell, Secretary of Health and Human Services v. Hobby Lobby Stores: If you are not affected by these rulings yet, you well could be in the future.

Both 5 – 4 decisions were written by Justice Samuel Alito, a conservative Catholic from New Jersey appointed by George W. Bush, and both rested on narrowly tailored legal arguments that just happen to cut wide enough to impact groups of workers who are almost exclusively female. Harris creates the special designation of “partial public employees” for publicly-funded home healthcare aides who work both for the client and for the state—who are 90 percent female, most of them poor, immigrants, and of color.

More responses to Harris v. Quinn below the fold.

While Pamela Harris is paid by the state of Illinois to care for her own son, as Jaffe points out, most of the workers affected by the Harris decision are working in other people's homes and are vulnerable, often poor women. This decision clearly strikes directly at them. But it also strikes at the care provided to disabled people, elderly people, and those otherwise in need of home care. Harold Pollack writes:

My brother-in-law Vincent—who lives with intellectual disabilities and some related health challenges caused by something called fragile X syndrome—receives services every day from unionized direct care workers, in his group home and in his workshop.

With its decision in Harris, the Supreme Court has torpedoed a practical and equitable partnership. People with disabilities could receive the in-home personal assistance they need. The men and women who perform this important work could receive a fair day’s wage for the work they do. Now that arrangement—and the well-being of both groups—is in jeopardy.

Charlotte Garden:
In the short term, Illinois must begin to allow home health-care workers to opt out of the agency fee. The impact here will likely be small; given the hard-fought benefits won by the union in recent negotiations (increased wages, and improved training and benefits), the majority of workers will probably continue to pay. However, other states considering adopting a collective bargaining model for their non-traditional employees will have to consider Harris’s impact. Justice Alito’s detailed attention to the particularities of Illinois’s management of its home health-care workforce may give states with somewhat different arrangements a basis to argue that they should not be covered by the decision.  But even if Harris’s reach extends more broadly, states may be able to avoid its consequences by increasing their supervision over home health-care aides, as Justice Kagan implied.  Unfortunately, this could come at the cost of depriving consumers of some amount of day-to-day control over service providers.
Jason Walta:
Finally, the majority gives startlingly short shrift to Illinois’s interest as an employer in maintaining a stable collective bargaining arrangement in which the union is not confronted with the free-rider problem of having to allow represented workers opt out of all financial support for the costly business of negotiating and enforcing an agreement. Although the majority pays lip service to the balancing of interests that it has employed in other First Amendment cases involving public employees (so-called “Pickering balancing”), its actual reasoning gives no weight to the employer’s legitimate interests in maintaining an agency fee arrangement. In essence, the Court says that it is not enough for the state to determine that an agency fee arrangement would be helpful in carrying out its employee-relations function, but that such an arrangement must be necessary to pass constitutional scrutiny.

Again, this is a standard that would be unimaginable in any other public-employment context. A public employer surely can require, as a condition of employment, that all of its employees cooperate with its human resources functions.  Indeed, I would hazard that the Harris majority would see no First Amendment problem with a public employer requiring employees to attend, at their own expense, a sexual harassment training course conducted by private entity. In that context, it seems inconceivable that the majority would require the employer to show that such an arrangement is necessary, as opposed to merely convenient or helpful. Likewise, it seems certain the contractor could not be required to provide the training for free to employees who object to the contractor’s approach to the training or to the contractor’s outside political activities.  (Recall that, in Citizens United v. FEC, the Court loudly proclaimed that “The First Amendment protects . . . speech [funded by money amassed from the economic marketplace], even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.”) And, if an employer can require this kind of association with a private entity “pursuant to” an public employee’s duty to cooperate with the employer’s human resources functions, why should Illinois be prohibited from requiring a similar association between employees and a union for purposes of its own employee-relations function? You won’t find any answers to those questions from the majority.

Douglas Williams:
[In her dissent,] Kagan also gets into an area that Alito’s decision misses, presumably because it is close to the bottom of his priority list: The working conditions experienced by those who provide home care. In addition to feeding, clothing, bathing, and cleaning, sometimes they have to deal with the attitudes of those they serve; the home care worker that worked with my Uncle Junior after his stroke had to deal with his abuse as much as we did. Because of this, the industry is notorious for having high amounts of turnover, which can be destabilizing for patients at a time when a familiar face can make all the difference. Kagan also hit out at Alito’s notion that because workers are all paid the same according to state law, that there was no need for an agency agreement. This sounds ridiculous on its face and Kagan hammers him on it, pointing out the benefits that all workers have accrued because of the SEIU’s bargaining on their behalf. This is the important part, however, and signals what Alito is trying to accomplish with his opinion: “The idea that Abood applies only if a union can bargain with the State over every issue comes from nowhere and relates to nothing in that decision—and would revolutionize public labor law.”

Originally posted to Daily Kos Labor on Sun Jul 06, 2014 at 01:25 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  rights to freeload (14+ / 0-)

    I am appalled that the capitalist wing of SCOTUS supports this.

    Then if you can get away with it, then why not - that must be the argument.

    SCOTUS had such a good week there did they not.  Screwing the low paid, and women - sorry, sluts.

    •  They Oppose Government Promotion of the General (9+ / 0-)

      welfare as a principle.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Sun Jul 06, 2014 at 02:07:21 PM PDT

      [ Parent ]

    •  Was the vote 5-4? (2+ / 0-)
      Recommended by:
      anna shane, akmk

      Haven't seen the vote on this one.

        •  Thx (1+ / 0-)
          Recommended by:
          akmk

          DKos always has someone that knows the real deal on things like this.  Great.  As usual, this was a solid conservative vote and we're to expect it until things change...which I wish was sooner than later.

          •  Yet... (0+ / 0-)

            ...carefully buried under the fold was (usually such detail by this author is just ignored -- I'm impressed this critical fact was eventually mentioned):

            While Pamela Harris is paid by the state of Illinois to care for her own son.
            Many "home care workers" fall in this category. If their charge passed away or had to move to a higher care facility, they would almost never become a professional caregiver for someone else, nor were they before their family member required assistance.

            I doubt that Pamela Harris gets workman's comp if injured, she doesn't get a pension, really, she gets nothing except her salary to care for her child. This is a good compromise - the child gets a consistent caregiver who cares about them deeply, the mother can manage to stay at home to provide that care rather than have to work outside the home and worry about caregivers. The state didn't "hire" Pamela, she effectively hired herself. She has no seniority in the system of caregivers. It's a legal fiction that she is an employee of anyone.

            Indeed, should she be expected to go on strike and let her child die if the Union decides to strike? If not, she's not a member of the Union nor should she pay dues.

            The obvious problem here, of course, is that she is not a professional caregiver - the state is simply paying her what it would cost to hire a professional caregiver. If licensing and continuing education is required for professional caregivers (as it should be), if the Unions push their way into this area, the tragic result will be that disabled people will be forced into care facilities because it's not practical for family members to maintain the necessary licenses and certifications.

            •  Your logic is problematic (1+ / 0-)
              Recommended by:
              akmk

              Read that last paragraph and think through the logic carefully. Your implication that unions force people into care facilities doesn't hold up under your own argument.

              Also, the point is that Pam Harris could hire a professional home care giver with state money if she pleased or didn't want to get certifications. In fact -- the state contract would allow her to pay that worker (or herself) more money and get better training.

  •  If the employees are (2+ / 0-)
    Recommended by:
    tovan, ColoTim

    not members of the union, can the union withhold services?

    If the union negotiates better wages/benes, do they have to apply to the nonunion members?

    The banks have a stranglehold on the political process. Mike Whitney

    by dfarrah on Sun Jul 06, 2014 at 01:45:27 PM PDT

    •  In the past the supremes in their wisdom (3+ / 0-)
      Recommended by:
      tovan, anna shane, ColoTim

      Have not allowed that
      But, the same out that the surpremes used could be used here,IMHO

    •  "Right to work" applies here (4+ / 0-)
      Recommended by:
      anna shane, AJayne, Patango, kfunk937

      I've lived in a "Right to Work" state and if this is a "right to work" ruling, then no, unions cannot withhold services and companies cannot deny the increased benefits and wages the union gets for employees through the collective bargaining process.  Fucked up, I know, but I'm thinking that's the answer to your question.

      There ARE ways to thwart this, however.  The unions involved can kind of "black-list" the non-union dues paying workers.  Not sure if it's legal, though.  

      Just sayin'.

      •  but sidewalk counseling is legal (0+ / 0-)

        so all union paying people have to do is wear a union badge and anyone else can enjoy the free speech rights of sidewalk counselors.    

        plus ça change, plus c'est la même chose

        by anna shane on Sun Jul 06, 2014 at 02:46:05 PM PDT

        [ Parent ]

      •  Maybe it's time (2+ / 0-)
        Recommended by:
        ColoTim, kfunk937

        to consider other legislation then - at the state level.

        The banks have a stranglehold on the political process. Mike Whitney

        by dfarrah on Sun Jul 06, 2014 at 04:10:41 PM PDT

        [ Parent ]

        •  Gotta change the legislatures first (2+ / 0-)
          Recommended by:
          ColoTim, kfunk937

          The union laws in various states almost always reflect the make-up of the legislatures.  Conservative-majority legislatures are anti-union, vice versa for liberal/progressive-majority legislatures.  States in the South are usually conservative in their legislatures so many of them are "right to work" states.  If you want that changed, then change the legislature.  It's what has to happen.  

          Ground up activism is necessary here....not top-down politics.  

      •  There's no way of having some sort of certified (0+ / 0-)

        or union (maybe going back to the tradesman classification) that would be given the higher wages and anyone not so classified would not be eligible and be a second tier worker, only eligible for the lower, apprentice or "junior" wage?  I don't know the ins and outs of unions, but I do try and look for a union label and certifications when making purchasing decisions.  It costs more, but gives me more of a comfort level that the work is likely to hold up.  If I had to choose between a tradesman or apprentice to care for my mother, I'd go for the tradesman with the higher qualifications and standards.

      •  in my case I get lawyer representation (0+ / 0-)

        Yes, my union (NEA) bargains for every teacher in the building.

        But, when my bosses decided to go after me (and they have) I not only have a right to have my building rep present, but after the meeting I make a call to my lawyer, and get very good legal advice and the knowledge that due process will work for me (this week anyway)

        Someone who doesn't belong is on their own after there's a third party verifying the conversation.

        That's when they usually decide to join.

  •  Like to see an investigation (7+ / 0-)

    of Harris' resources. I can't help but conjecture that somehow she was rewarded handsomely to serve as the stalking horse for this issue. I just don't know any 'real' people who are so offended by seeing their wage earning capacity improved.

    •  It seems especially mean-spirited of her (6+ / 0-)

      given that she is in the very fortunate position of being paid to care for her own son, as opposed to being forced to bring in someone else or to pay out of her own pocket.

      Fry, don't be a hero! It's not covered by our health plan!

      by elfling on Sun Jul 06, 2014 at 01:56:10 PM PDT

      [ Parent ]

      •  there is always at least one (3+ / 0-)
        Recommended by:
        qofdisks, AJayne, ColoTim

        traitors are ready to take advantage of opportunities, but they aren't often very smart and they don't count on the blow-back publicity.  She's just a pawn, there would have been some other one, but she surely has been patted and complimented and wined and dined, and she now will be left on her own, her usefulness is over, she can even recant, it's fait accompli.

        Anyone wonder whatever happened to Linda Tripp?

        plus ça change, plus c'est la même chose

        by anna shane on Sun Jul 06, 2014 at 02:48:19 PM PDT

        [ Parent ]

  •  The employer (government) needs to create (4+ / 0-)
    Recommended by:
    tovan, Patango, ColoTim, WillR

    A two tier system
    Either you are a general employer, using people from the county's pool of workers, or you are a family provider, who isn't covered by contract.
    With minimum wage for the families...
    With the option of yor family joining the union so to get covered by their contract.

  •  Pamela Harris would do well to remember (4+ / 0-)
    Recommended by:
    tovan, La Gitane, ColoTim, GleninCA

    that society has words to describe people who benefit from an institution without making any contributions what-so-ever to it. In fact, I'll bet she uses many of those same words to describe her neighbors - the ones she thinks are less worthy than her.

    Shame on her and all those who think as she does.

  •  This fact makes Ms Harris' hypocrisy even worse: (4+ / 0-)
    Recommended by:
    tovan, anna shane, ColoTim, GleninCA
    While Pamela Harris is paid by the state of Illinois to care for her own son, as Jaffe points out, most of the workers affected by the Harris decision are working in other people's homes and are vulnerable, often poor women.
    •  she's not one of them at all (5+ / 0-)
      Recommended by:
      qofdisks, Patango, AJayne, ColoTim, GleninCA

      she won't care for disabled strangers, old men who can't keep their hands to themselves or their mouths shut, old women who find fault with everything.  These are symptoms and deserve patience and compassion, but so do the workers deserve compassion and a living wage.  

      She didn't think this through. I wonder who will be willing to take care of her when her need arises.

      plus ça change, plus c'est la même chose

      by anna shane on Sun Jul 06, 2014 at 02:51:08 PM PDT

      [ Parent ]

  •  War on Women: the Generals (8+ / 0-)

    American Presidents: 43 men, 0 women. Ready for Hillary

    by atana on Sun Jul 06, 2014 at 02:09:52 PM PDT

    •  ICK (1+ / 0-)
      Recommended by:
      Patango

      in level of degree of perversion Roberts is first among equals.

      A long time ago five little girls inadvertently broke the hearts of five little boys and those angry little boys grew up to exact their revenge.

      plus ça change, plus c'est la même chose

      by anna shane on Sun Jul 06, 2014 at 02:53:32 PM PDT

      [ Parent ]

  •  If I were the union then, I'd challenge her (4+ / 0-)
    Recommended by:
    anna shane, Patango, ColoTim, GleninCA

    eligibility to even get paid by Medicaid as a worker--

    She's a daughter taking care of her mother.

    Let her prove why she SHOULD be called a worker and not someone trying to mooch off the state.

    "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Sun Jul 06, 2014 at 02:50:21 PM PDT

  •  Would be interesting to see if a company owned (3+ / 0-)
    Recommended by:
    qofdisks, anna shane, ColoTim

    by home care workers could negotiate with the state to provide their services.

    Each worker buys one share of stock, and only one share - so all workers have an equal vote, shares owned by workers can only be sold to the company.  Then instead of union dues, the home care worker company would take a "commission" or periodic fee to pay for administration, negotiating with the state, and other functions.

    In this way, freeloading would be more difficult.

    Maybe some of the home care worker union leadership would consider taking this approach, esp., as the political leadership in Illinois is generally pro-union and pro-worker.

    The most important way to protect the environment is not to have more than one child.

    by nextstep on Sun Jul 06, 2014 at 03:15:25 PM PDT

  •  This is a horrible decision... (1+ / 0-)
    Recommended by:
    ColoTim

    for all the reasons stated.  But there may be one tiny way to ameliorate it a little bit.  I belong to MTA (Massachusetts Teachers Association), and along with my membership, I, and all MTA members, get quite substantial liability insurance in case we are sued.  Non-members pay an agency fee, but don't get this insurance.  Until we can get a Supreme Court that recognizes the importance of unions, if unions offered this kind or similar benefits, it might be an interim measure to tide us by until there are better times.

    "There have been tyrants and murderers and for a time they seem invincible but in the end they always fail. Always." -Gandhi

    by Grandma Susie on Sun Jul 06, 2014 at 05:29:32 PM PDT

  •  Perhaps an exemption in the law... (1+ / 0-)
    Recommended by:
    WillR

    should have been made for those working only limited hours or for those caring for a relative.

    Water over the damn now, I guess.

    •  This is why this case... (2+ / 0-)
      Recommended by:
      OrganicChemist, mosesfreeman

      ...is really not very compelling. The mother, here, is basically a contractor and not an employee. The state pays her what it would cost them to provide the service via professional caregivers.

      Some battles are worth picking, others are not. The Union et al picked a bad battle here and (I think rightfully) lost. The impact of this loss however may be broader reaching than if they had picked a reasonable case instead of being greedy.

      It's rather like an insurance company either hiring union contractors to repair your house after a fire or just giving you the cash they would have spent on that and you repair it yourself in the evenings and weekends (of course, to code and with permits) or just sell the house at a discount to a contractor.

      Ms. Harris simply is NOT an employee by any reasonable stretch of imagination. She almost certainly is not subject to work laws.

      For example, suppose Illinois employment rules require that an "on call" employee called into work be paid for four hours even if they only perform three minutes of work after arriving. If Ms. Harris' child needs two minutes of assistance at 1:00AM and again at 4:05AM, can she then not respond to a call for help at 8:10AM because she would "be on overtime"?

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