This term the US Supreme Court will have the opportunity to decide whether the state can force private home assistants to join a public employee union. Recently, the Court agreed to hear arguments from appeal lawyers in Harris v Quinn. That case challenges the constitutionality of an Illinois executive order that declared personal home assistants (i.e. those who provide homecare for those receiving Medicare) to be “public employees” for collective bargaining purposes.
This conversion to public employee status involves more than a simple name change. In Illinois, public employees are unionized. Thus, under state law, all public employees must abide by decisions reached in collective bargaining agreements by that state’s public employee union’s leadership—leadership that may pursue political projects that those employees disagree with. Worse, public employees must pay the union to negotiate on their behalf whether they want to be part of the union or not. In short, while state law does not require official union membership, it essentially makes all public employees union members in every meaningful sense of the word.
Several home assistants, represented by National Right to Work, challenged the “public employee” designation as inaccurate and unconstitutional. According to the plaintiffs, personal home assistants are not public employees in any meaningful way. Like physicians, personal home assistants receive payments from Medicare, but as with physicians, their contracts are with the individual they serve—not the state. A customer may elect to terminate their service at any time. Accordingly, they argue that it is a violation of the freedom of association to force personal home assistants into a public employees union.
It is unclear from the cases whether that argument will be successful. The First Amendment protects the freedom of association. That right generally includes the right to join, or not join, whatever group one sees fit. Thus the Supreme Court has routinely struck down laws which attempt to force citizens into membership in any group or to subsidies the activities of any group with which they do not agree. As Justice Black once noted “I can think of few plainer, more direct abridgments of the freedoms of the First Amendment than to compel persons to support candidates, parties, ideologies or causes that they are against.” Lathrop v. Donohue, 367 U.S. 820, 873 (1961).
However, starting in the 1930s courts began carving narrow exceptions to this rule in order to accommodate for union agreements. At the time there was a concern that non-union workers would attempt to free ride on the successes of union leadership without having to chip-in themselves. Thus the Supreme Court eventually upheld some government compelled support of labor organizations based on the need to have a single organization represent the employees to avoid the confusion of agreements with different unions and the dissension that could be caused by “inter-union rivalries.”
This strange exception to the First Amendment has always been controversial. But here, it may not even apply. The plaintiffs argue that, there is no risk of “dissension” in the work place since the workplace is in individual homes. There is no bargaining with the true employer – the person receiving the home health care service. There is no grievance process and no need for the services of “lawyers, expert negotiators, economists, and a research staff.” Thus, there is no reason to justify forcing them to join a public employee union.
That said, the case calls forth much broader issues than whether personal home assistants should be considered “public employees.” It gives the Court an opportunity to reexamine whether it is still proper to ignore the First Amendment when dealing with unions. In this author’s opinion, it is high time that it did so.