Moshe Z. Marvit is a labor and employment attorney and a fellow at The Century Foundation. He is the co-author (with Richard Kahlenberg) of “Why Labor Organizing Should be a Civil Right”)
On Tuesday the Supreme Court will hear arguments in Harris v. Quinn, a case that has been referred to as a “sleeper” by both conservatives and liberals and may turn out to be the most significant labor law case in decades. It was brought by the National Right to Work Legal Defense Foundation (NRTW), whose mission is to use “strategic litigation” to “eliminate coercive union power and compulsory unionism abuses,” in this case on behalf of several personal assistants who provide in-home services to persons with disabilities under Illinois’s Medicaid program.
NRTW argues that these home-care workers are not public employees and therefore should not have the right to exclusive representation by a union, nor should they have to pay either membership dues or a “fair share” fee for the union they have chosen to represent them. (“Exclusive representation” means that all workers are covered by a union so long as the majority have voted for it. A “fair share” provision requires workers who are not union members to pay a proportionate share of the costs incurred by the union to support the workforce in the collective bargaining process. Unions are not allowed to use “fair share” fees on any political activities.)
NRTW also argues that no public employees should have the right to exclusive representation or be subject to fair share fees for union representation. Such a decision would significantly affect every state and municipality, as it would make it more difficult for police, firefighters, teachers and other professions that serve the public to organize and bargain collectively.
Yet the Supreme Court has affirmed public employees’ rights to exclusive representation and fair share fees on numerous occasions. Indeed, even Justice Antonin Scalia, not known for his fondness for unions, wrote in a 1991 opinion that “where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost.”
Additionally, the home-care workers’ status as public employees should be relatively uncontroversial. The elderly and disabled individuals that the home-care workers serve have the right to hire, fire and direct them within certain parameters, but the state pays their wages and benefits and has passed a statute categorizing home-care workers as state employees. Importantly, home-care workers’ rights to bargain collectively are limited to those matters that the state controls.
States have allowed home-care workers to form unions because it helps make the system work. Over the next 36 years, the number of Americans 65 and older is expected to more than double to 88.5 million. Home-care workers allow elderly and disabled individuals to remain at home, a cheaper alternative that most Americans prefer, rather than be placed in long-term care facilities. The home-care workforce has historically had extremely low wages, high rates of injuries and unpredictable hours, resulting in a shortage of qualified workers willing to undertake this important service. According to a 2007 survey by the Paraprofessional Healthcare Institute, 97 percent of states reported “serious” or “very serious” shortages in their direct-care workforce .
Taking away home health-care workers’ collective bargaining rights would destroy the careful balance at least seven states have created to deal with aging populations and increased health-care costs, as well as to ensure an adequate and well-trained home-care workforce. The system of collective bargaining in this case is responsive to home-care workers’ needs, creates safer working conditions for both the workers and their clients and ensures a skilled and stable workforce. In Illinois, home-care workers with the right to collective bargaining will almost double their pay to $13 per hour by the end of the year, receive health benefits and gain access to hygenic gloves at work. As a result, the state is able to attract and retain qualified individuals to take care of a rapidly aging population.
It is unclear how far the Supreme Court ruling Harris v. Quinn will reach. The court accepted the case even though there was no lower court split to resolve, and four justices indicated in a 2012 case that they were open to a First Amendment challenge to certain aspects of public sector unionism. For this reason, many union supporters are worried that the court will use this case to dismantle public sector unionism — the last bastion of labor’s strength.
However, the court need not go that far to irreparably damage the carefully crafted policies states have employed to deal with their rising gray tide of baby boomer retirees. There are currently approximately 1.8 million home-care workers in the United States , and many millions more who depend on these workers. If the Supreme Court finds that home-care workers are not public employees with the right of exclusive representation and fair share fees, these workers will not be the only ones who suffer: Many elderly and disabled people who rely on them to stay in their homes will be forced to seek care in institutions; taxpayers will be forced to bear higher costs; and states will have to find a new way to deal with a ballooning problem.