Let’s cut to the chase: Today’s Supreme Court decision [PDF] in Harris v. Quinn is a setback for millions of women working in low-wage jobs. It limits the organizing rights of home care workers and child care providers–two overwhelmingly female and poorly paid groups of workers. Through unionization, these workers have secured better pay, training, and working conditions for themselves—and the seniors, people with disabilities, and children who rely on these workers have benefited from a more stable and qualified workforce. Today’s decision doesn’t mean these workers’ voices will be silenced, but it does mean we have our work cut out for us – and that begins now.
The case involved an Illinois state law that authorized home care workers paid by the Medicaid program to decide, by majority vote, whether to join a union. (There are more details on the Harris case in this earlier post.) These workers provide home health services to individuals needing care, ensuring that people with disabilities and the elderly are able to stay in their own homes and avoid institutionalization, when possible. The workforce is large, often isolated, and turnover is high; allowing workers to form a union to negotiate with the state gives them input into their working conditions.
In line with years of established labor law, Illinois provided that, if a majority of workers voted to unionize, nonmembers would not be required to join the union or pay to support political activities (“nonchargeable” expenses), but could be required to pay fair share fees. These fair share fees cover the administrative costs of collective bargaining, handling grievances, and similar activities that benefit all workers, union and non-union. Unions have a legal duty to fairly represent all workers in the bargaining unit; the Supreme Court has repeatedly upheld mandatory fair share fees as necessary to fairly distribute the costs of bargaining among all those who benefit.
The plaintiffs in Harris were nonmember workers who objected to paying fair share fees on First Amendment grounds. The district court and the 7th Circuit rejected their claims, citing decades of Supreme Court decisions. The plaintiffs took their case to the Supreme Court – and in a 5 to 4 decision, a majority of the Supreme Court overruled the lower court decision.
Justice Alito’s majority opinion didn’t overturn a major case decided in 1977, Abood v. Detroit Board of Education, which upheld mandatory fair share fees for public employees to support collective bargaining – but it did refuse to apply that case’s holding to workers who have a different employment relationship with the state than traditional public employees. (The 7th Circuit found that these home care workers were “joint employees” of the state and the individuals for whom they provided care. Justice Kagan’s dissent thought the distinction didn’t matter, but Justice Alito wrote that Abood only applied to “full-fledged” public employees. )
Although it wasn’t necessary to the resolution of this case, Justice Alito didn’t hide his disapproval of the foundations of the Abood case. As Justice Kagan notes, “Today’s majority cannot resist taking potshots at Abood. . . .” The Court’s gratuitous criticisms of Abood are worrisome; they seem to be an invitation to challenge public employee organizing in a big way. Justice Alito is making a habit of using nonbinding dicta to preview how the Court feels about unions – and trust us, it’s not good. But Justice Kagan’s dissent rightly notes that, although she believes the precedent clearly should have allowed these home care workers to unionize and collect fair share fees, Abood remains the law for other public employees.
Sadly, that’s not the case for the workers affected by today’s ruling. Despite seeing increased wages, better health benefits, and decreased turnover among workers (the very kinds of things that make union membership such an empowering tool for women!), these home care workers and others in similar positions, including some organized child care workers, are no longer going to be able to unionize the way many states have allowed. The work they do is incredibly difficult – emotionally and physically – and the Court just made it significantly more difficult for them to have their voices heard. That means figuring out new ways to ensure these workers don’t lose the gains they’ve made and can continue fighting for fair conditions. That starts today.