Just over two weeks ago, the U.S. Supreme Court in Harris v. Quinn ruled that the State of Illinois cannot force certain public employees who do not opt to join a union to pay what amounts to a representation fee. You can access the full opinion here. The Supreme Court has previously upheld requirements that non-union members who nonetheless benefit from a union’s collective bargaining activity pay the union a fee, to be deducted from the employee’s pay by the employer. Has established precedent been overturned? What happened in the case, and what is the likely impact? Join The Emplawyerologist after the jump and we’ll try to get some answers!
This case really focused on public employees. If you are a private employer, it does not appear that this ruling will really impact you. What about public employers and Public Employee Unions (PEU’)s? Harris v. Quinn focused on specific types of workers with a specific type of work arrangements. Does the ruling likely impact you? Should we be concerned about his case? Let’s first understand what happened and then you can decide.
Pamela Harris and eight other women are personal care assistants (PA’s), providing in-home care to disabled participants in Illinois’ Home Services Program. The state pays the assistants’ wages through either the Disabilities Program or a program run by its Division of Rehabilitation Services (Rehabilitation Program). The Court focused on assistants paid through the Rehabilitation Program, finding the claims of those working under the Disabilities Program not yet ripe for adjudication.
Illinois law deems PA’s to be public employees specifically for the purpose of collective bargaining, but otherwise provides that such workers are employees of the individual customers to whom they provide assistance. In 2003 a majority of these PA’s elected Service Employees International Union Healthcare Illinois and Indiana (SEIU) as their exclusive collective bargaining representative. The union and the state negotiated a collective bargaining agreement, which included a “fair share” provision, which requires all PA’s who are not union members to pay a proportionate share of the costs of collective bargaining and contract administration.
You may be thinking, “That sounds fair. What’s the problem?” Ms. Harris and the other plaintiffs argued that the imposition of fair share fees violates their freedom of speech and freedom of association rights under the first and fourteenth amendments. Since the employer in this case is the government, Harris et al argued that the bargaining is really a form of political activism; therefore the required fees force them to support a political cause they do not endorse. The Supreme Court in a 5-4 ruling, agreed. Justice Alito, writing for the majority, said 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.”
Even when the Supreme Court finds a violation of a constitutional right by the federal or state government however, the inquiry does not end there. The government must show that it has a compelling interest and that the proposed method for meeting that need is the least restrictive one for doing so. Here is where the majority and the remaining four justices parted company. The State and the SEIU relied on Abood v. Detroit Board of Education, 431 U.S. 209 (1977) which held that non-union members could be forced to pay a fair share fee because they benefited from the union’s collective bargaining efforts. In that case, involving public school teachers, the compelling interest apparently was “labor peace”. In other words, dealing with one representative, rather than competing unions, or employees wanting to be represented by different unions, or unions and employees who might be advocating different positions. This presumably would enable the school district to proceed with providing quality public education to its students.
Harris v. Quinn though was not about challenging Abood itself. The case essentially challenged the extension of Abood to the specific facts of this case. Both the majority and dissenting opinions seemed to understand that point. Justice Kagan, writing for the dissent, does not appear to have challenged Justice Alito’s statement that the compulsory fees did or could in fact infringe on the First Amendment. Her opinion focused on why it was warranted to extend the application Abood to the facts in this case. In other words, essentially the majority and the dissent differed on whether the government proved that “labor peace” was a compelling interest in this case and that mandatory fair share fees were the least restrictive means available to promote labor peace. If Abood applies here then the government has met the compelling interest/least restrictive means test. If not, then without some other showing, it has not.
The majority clearly was not comfortable extending the ruling in Abood to these facts; neither was it comfortable overruling it. The court focused on the fact that the PA’s were not full-fledged public employees. At best they were hybrid or “quasi-public” employees, which, according to the majority, rendered Abood inapplicable. Specifically:
- The state merely paid the wages and set minimal qualification standards and provided someone to facilitate customer evaluations;
- Full-fledged public employees were entitled to a host of benefits to which these personal care assistants had no access;
- These workers are not indemnified (i.e. shielded from liability) by the State for any claims arising out of anything they did in the course of their jobs; d) assistants were “almost entirely answerable to the customer”.
- If these workers had any issue with the customer, their “boss”, the union would not “grieve” those issues on their behalf.
- The court also relied on the fact that Illinois law requires that all PA’s receive the same rate of pay.
The court therefore reasoned that “labor peace” , while it may be a compelling interest for full-fledged public employees was not applicable here to such limited union activity on behalf of these workers. The court further reasoned that the PA’s were not arguing that they had a right to form or join a rival union or that the union did not have the right to act as the exclusive bargaining agent. The majority therefore was not convinced that allowing these types of workers to opt out of paying fair share fees would undermine labor peace. Moreover, SEIU made no showing that without the objecting non-members’ payments, it would be unable to effectively advocate without receipt of non-member fees.
While public unions may have to work harder and be more creative to get non-member contributions, or to get more members, this ruling, in and of itself is not a death-blow to public unions. Why are pro-labor people so concerned then? While the majority ruling did not overturn Abood, it did, in very strong language call its underpinnings into question, which could be read as an invitation for more challenges in the future. (Again, you can read the opinion, using the link above, to see that language). If so, the long-standing precedent of mandatory fair-share contributions could face further attack. That, arguably is the most serious impact of Harris v Quinn.
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Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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