The U.S. Supreme Court doesn’t do snow days, apparently. While much of D.C. hunkered down Tuesday for our latest winter storm, the Court went on as usual, hearing oral arguments in a case that could upset years of established labor law. It could leave low-wage workers, overwhelmingly women, who provide home health care services under Illinois’ Medicaid program—and potentially other public employees—without a voice at the negotiating table. Knowing how high the stakes are, I ventured out to listen.
The case, Harris v. Quinn, addresses key questions about the unionizing of in-home care providers paid by the state of Illinois through two Medicaid programs. Here is a boiled-down version of the main issues: First, if a majority of care providers vote in favor of an exclusive bargaining representative (a union), can the state recognize and negotiate with that union? Second, can the providers who voted against unionization be required to pay a “fair share fee,” a payment that goes to cover the administrative costs of bargaining the contract that also benefits them?
Why would a state choose to negotiate with a union in this kind of situation? Lots of reasons. As Illinois’ Attorney General Lisa Madigan told NPR’s Nina Totenberg, the workforce is large, distributed around the state, and often isolated – and as the party footing the bill and watching out for citizens, the state has an interest in retaining quality providers: “The home services program has about 28,000 home care aides, and these people are working in homes all over the state. There isn’t a centralized workplace, and the goal for the state is creating and retaining a professional group of home care aides to meet the needs of what is an ever increasing population of older people with disabilities.”
In addition to keeping qualified workers, the state says collective bargaining makes financial sense, too. Illinois reports saving more than $630 million since the providers unionized. Employee turnover is reduced, and better in-home care means that more expensive institutionalization can be avoided—a benefit for the state and the clients.
Providers, who work in the growing low-wage home health care sector, benefit from collective bargaining, as well – in tangible, critical ways. Since unionizing, providers’ wages have almost doubled, training has increased, a grievance procedure has been put in place to respond to provider concerns, and providers are eligible for health insurance. Paul Smith, who argued on behalf of Illinois and the union at the Supreme Court, pointed out [PDF] Tuesday that these fees are used to address practical, necessary needs of workers – for example, providing workplace gloves for providers’ own safety.
By law, fair share fees can’t go toward political activities like electoral politics. The mandatory fees from non-union members are designed to prevent so-called “free riding”– where workers receive the benefits of collective bargaining but rely on their co-workers’ paying union dues to cover negotiating costs. Fair share fees ensure that unions, which have the duty to fairly represent all workers in the bargaining unit, members and nonmembers alike, have the resources they need to negotiate and administer a contract for their benefit.
The plaintiffs in Harris – care providers who are not union members – argue that their First Amendment rights are violated by the exclusive bargaining representative and collection of fair share fees. The lower court decisions – from a federal district court and the U.S. Court of Appeals for the Seventh Circuit – both ruled for the state of Illinois and the union. With no circuit split and a long line of precedent supporting the organizing at issue, the Court’s decision to take up Harris was a curious one.
Based on what I heard Tuesday, the majority of justices seemed hesitant to overturn an earlier case that upheld mandatory fair share fees for public employees to support collective bargaining. Of course, it’s impossible to predict how the Court will rule, but the significance of what’s at stake – for states, for people in need of in-home care services, and for the largely female workforce that provides those services – couldn’t be clearer.