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Do you have to unionize at home?

In Harris v. Quinn the Supreme Court of the United States found that in-home caregivers cannot be required to join a union or pay its dues.

Photo by Steve Rhodes (Flickr).

Governor Rod Blagojevich of Illinois issued Executive Order 8 in March of 2003 which required that all personal care assistants in the state join the Service Employees International Union (SEIU) and be treated as state employees.  This was a controversial Order because this category of personal care assistants included individuals who were caring for their own family members or loved ones in their own homes.  Blagojevich designated these individuals as state employees because they collected certain Medicaid funds which were being paid from the state to disabled or elderly individuals.  These monies were dispersed so that elderly and disabled individuals could afford in-home health care services.  Without these Medicaid funds many individuals would otherwise have to live in a more expensive nursing home or other health care facility, likely to be paid for by the state.

 The Illinois Labor Relations Board had found that the State was not the personal care assistants’ employer and therefore had no jurisdiction over the employee-employer relationship.

This executive order, later codified by the Illinois Legislature, came after the Illinois Labor Relations Board had found that the State was not the personal care assistants’ employer and therefore had no jurisdiction over the employee-employer relationship.  The governor indicated that this Executive Order was needed in order to “preserve control over the hiring, in-home supervision, and termination of personal assistance,” in addition to allowing the state to survey and receive feedback from the personal care assistants.  This was done despite the fact that the personal assistants were not considered state employees for purposes of the state’s vicarious liability or health insurance benefits and under the applicable state law the state government did not have any control or input in the employment relationship between the patient and the personal care assistant.

The law in Illinois only requires a mandatory annual performance review, conducted by the patient, and that the state be available to mediate disagreements between the employer and employee.  The state employee distinction was important because under Section 6 of the Illinois Public Labor Relations Act (PLRA) state employees are required to pay a fee to the recognized union if the state employee does not join it.  This Act is justified on the basis that the employees who choose not to join the union should be required to pay their “fair share” in order to prevent these individuals from “free-riding” because they too would benefit from the union’s work.

 Imposing these fees was not permissible under the First Amendment because an individual may not “be compelled to subsidize speech by a third party that he or she does not wish to support” when they are not full state employees.

In 2010 eight personal care assistants filed a putative class action naming Governor Pat Quinn and the SEIU as defendants.  This case was initially dismissed by the U.S. District Court for the Northern District of Illinois.  The dismissal was upheld by the U.S. Court of Appeals for the Seventh Circuit, finding that the personal assistants were public employees.  The decision was appealed to the Supreme Court of the United States and the Court granted certiorari.

Writing for the majority in Harris v. Quinn, Justice Alito couched the issue as “whether the First Amendment permits a state to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support.”  On this issue in a five to four split, the Court reversed the Seventh Circuit by finding that imposing these fees was not permissible under the First Amendment because an individual may not “be compelled to subsidize speech by a third party that he or she does not wish to support” when they are not full state employees.

In coming to this decision the Court chose not to follow Abood v. Detroit Board of Education, which held that although state employees are permitted not to join a labor union they may be required to pay a fee to support that unions work unrelated to an ideological cause.  The majority distinguished Abood on the basis that the Illinois personal care assistants are not “full-fledged” public employees, like the individuals in Abood, rather the Governor and Legislature categorized them as state workers “solely for the purpose of unionization and the collection of an agency fee.”  Much of this distinction rested on the fact that the patient was solely responsible for controlling the employment relationship.  This included, “without limitation, locating and hiring the [personal assistant], training the [personal assistant], directing, evaluating an otherwise supervising the work performed by the personal assistant, imposing… disciplinary action against the [personal assistant], and terminating the employment relationship between the customer and the [personal assistant].”  Therefore, because the court found that the personal care assistants were not “full-fledged” state employees, the Court could not find a compelling state interest which would justify the violation of their First Amendment rights caused by Executive Order 8.

This decision benefits the Harris family and others in similar situations by increasing the amount of money that they receive each month and preventing the SEIU from imposing certain rules inside their homes.

The ruling was great news for lead plaintiff Pam Harris who is the primary caregiver for her disabled son Josh.  Josh is permanently disabled due to an illness called Rubinstein-Taybi Syndrome which requires his mother to provide him with constant care including helping him perform some of life’s most basic functions.  Much of Josh’s medical expenses and bills are paid out of his $1,300 monthly Medicaid check, of which Pam Harris estimated about $90 per month was being taken out to pay for her union dues.  This decision benefits the Harris family and others in similar situations by increasing the amount of money that they receive each month and preventing the SEIU from imposing certain rules inside their homes.

Not everyone was happy with the Supreme Court’s decision.  Shortly after the ruling was handed down on June 30, 2014 the SEIU argued in a press release that the decision “places at risk a system of consumer-directed home care in Illinois that has proven successful in raising wages, providing affordable healthcare benefits, and increasing training… and having a strong union for home care workers is the only approach that has proven effective.”  This same sentiment was echoed by the White House Office of the Press Secretary which indicated that this “decision will not only make it significantly harder for these dedicated employers to get a fair shake in exchange for their hard work, but will make it harder for states and cities to ensure the elderly and Americans with disabilities to get the care they need and deserve.”

Davis Puryear, Former Managing Editor
About Davis Puryear, Former Managing Editor (15 Articles)
Davis Puryear served as the Managing Editor of the Campbell Law Observer during the 2014-2015 school year. In 2012, Davis graduated from the University of South Carolina with degrees in Finance and Marketing. Davis has previously interned with Hutchens Law Firm of Fayetteville and the Cumberland County District Attorney's Office. He is from Fayetteville, North Carolina. Davis graduated from Campbell Law School in May 2015.
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