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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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