Yesterday, the Supreme Court of the United States held that the First Amendment of the U.S. Constitution prohibits a public-employee union from collecting an agency fee from home-care workers who do not want to join or support the union. According to the majority opinion, which Justice Alito wrote in a 5-to-4 decision, the Court’s holding reaffirmed “the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” Harris v. Quinn, No. 11–681, Supreme Court of the United States (June 30, 2014).
The Illinois “Fair Share” Provision
The Home Services Program of the Illinois Department of Human Services—known as the “Rehabilitation Program”—allows participants to hire a “personal assistant” to provide home care services to individuals who are unable to live in their own homes without assistance and are unable to afford the expense of in-home care. The federal Medicaid program funds state-run programs such as the Rehabilitation Program in Illinois.
Illinois law establishes an employer-employee relationship between the care provider and care recipient and explicitly states that the person receiving home care “shall be the employer of the [personal assistant].” The law further clarifies that the state will not have control over the employment relationship, which is completely the responsibility of the care recipient. Nevertheless, the state, funded by the Medicaid program, pays the personal assistants’ salaries.
The Illinois Public Labor Relations Act (PLRA), which permits state employees to unionize, includes a “fair share” agency-fee provision that requires nonunion members of a bargaining unit to pay a fee to the union. In 2003, the Illinois legislature amended the PLRA to declare that personal assistants are state employees for purposes of the PLRA alone. Subsequently, the personal assistants voted in favor of a union, the SEIU Healthcare Illinois & Indiana (SEIU–HII), to serve as their exclusive representative.
In 2010 a group of personal assistants under the Rehabilitation Program filed a lawsuit seeking to enjoin the enforcement of the fair share provision and a declaration that the PLRA violates the First Amendment by requiring personal assistants to pay a fee to a union that they do not support. The federal district court dismissed the case and the Seventh Circuit Court of Appeals affirmed the dismissal on the basis of the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. According to the Seventh Circuit, the care recipients and the state were joint employers of the personal assistants. The Supreme Court of the United States agreed to hear the case to resolve “the important First Amendment questions” that arise from state laws that deem personal assistants to be state employees for the purposes of unionization and the assessment of fair share fees.
The Supreme Court’s Decision
The Court began its analysis with a lengthy discussion of the import and reach of Abood, which held that state employees who choose not to join public-sector unions may nevertheless be compelled to pay agency fees to support union work that is related to the collective bargaining process. Finding the 1977 Court’s analysis in Abood to be questionable, this Court refused to extend its holding to the personal assistants in this case, who, according to the Court, were not “full-fledged” public employees. In arriving at this conclusion, the Court relied on the fact that under the PLRA, personal assistants are public employees only for the purpose of collective bargaining. Moreover, the majority opinion stressed that the state does not control most aspects of the employment relationship between the care recipients and providers and that the personal assistants were not entitled to most of the rights and benefits enjoyed by state employees in Illinois.
After finding that Abood is confined only to full-fledged state employees, the Court analyzed the constitutionality of the PLRA’s fair share fees provision. In short, the Court concluded that the interests furthered by the agency fee provision were insufficient to overcome the personal assistants’ “right not to be forced to contribute to the union, with which they broadly disagree.” For the agency-fee provision to pass First Amendment scrutiny, the Court ruled, it must have been shown that “the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join.” In the absence of this showing, the Court concluded that 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.
While the workers at issue in Harris v. Quinn were challenging an Illinois law, the Court started its majority opinion by noting that almost every state has implemented a similar rehabilitation program. The “partial-public” or “quasi-public” employees (as the Supreme Court referred to them) who participate in these programs are in positions to challenge their own states’ collections of fair share fees. After the decision in Harris v. Quinn, though, any such challenge would depend on an employment arrangement that is similar to the one found here—in which the care recipient is the employer who sets nearly all the terms and conditions of employment.