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In a 5-4 ruling, the U.S. Supreme Court refused to extend its previous holdings regarding “fair-share” fees to state-paid caretakers who provide in-home care to disabled individuals (often to family members). Fair share fees represent the union’s per-capita cost of collective bargaining and contract administration that nonmembers must pay in lieu of union dues. According to the court in Harris v. Quinn, in this setting, mandatory fair-share fees are unconstitutional.

Theresa Riffey, Susan Watts and Stephanie Yencer-Price are home care providers, or “personal assistants,” to disabled participants in the Home Services Program, a Medicaid-waiver program operated by the state of Illinois. The state subsidizes the participant’s cost of home care. Riffey, Watts and Yencer-Price are paid for these services by the state pursuant to the Home Services Program.

In 2003, then-Illinois Gov. Rod Blagoyovich (and current federal penitentiary prisoner No. 40892424) established by executive order (later codified by statute) an arrangement to allow a labor union to collectively bargaining on behalf of the home health care workers. Under the arrangement, the Service Employees International Union (SEIU) Healthcare Illinois and Indiana was appointed the exclusive representative of the home health care workers, later ratified by majority vote of the caregivers. The union then negotiated a collective bargaining agreement that set the personal assistants’ pay rates and also contained a provision requiring all home health care workers to pay either union dues or fair share fees. The union collected millions from this arrangement and coincidentally also funded Blogoyovich’s campaign.

Riffey, Watts and Yencer-Price declined to become SEIU members and thus paid fair share fees through mandatory payroll deduction. In 2010, they initiated a class-action lawsuit against the governor and the SEIU, arguing that the imposition of SEIU’s fair-share fees on them violated their Constitutional right to free speech, free association and to petition the government for a redress of grievances. More specifically, this lawsuit claimed that nonunion personal assistants were being unlawfully compelled to financially support the SEIU.

A federal court dismissed the personal assistants’ class action, holding that the SEIU’s mandatory fair share fees do not violate their constitutional rights. The personal assistants appealed the decision to the U.S. Court of Appeals for the Seventh Circuit, which affirmed. The U.S. Supreme Court reversed.

The court held that the Constitution precludes Illinois from compelling the home care personal assistants to subsidize or associate with a union through a fair share fee arrangement when the personal assistants are government employees for only one purpose—collective bargaining. The court reasoned that personal assistants are private-sector employees for all other purposes because the persons for whom they provide care control all significant aspects of the employment relationship, including hiring, firing and supervising. Because the union’s ability to affect terms and conditions of employment through collective bargaining are so circumscribed, the court concluded that the Constitution prohibits the state from requiring fair share fees from personal assistants who reject the union.

The Supreme Court has almost always upheld mandatory fair-share fee arrangements in the public-employment context. This decision departs from these precedents and holds that, in the “joint employment” context where workers are hired and supervised by someone other than the public employer who pays them, mandatory union fees violate the Constitution.

In sum, the Harris court held that the government must establish that a public-sector mandatory fair-share fee requirement serves a compelling governmental interest that cannot be achieved through less restrictive means. Because the union had little power to affect home health care workers’ terms and conditions of employment, Illinois was unable to demonstrate that the fair share fee served a compelling interest. Further, the state failed to establish that effective union representation was unattainable without compelled fees from nonmembers.

The Harris court has effectively frustrated organized labor’s ability to compel union subsidy from state-paid home health care workers. As a consequence of that decision, that scheme no longer works. The Harris decision affects the 12 states where unions had political clout to compel state legislatures to permit forced union subsidy from home health care or child care workers. Three states at one time had similar arrangements, but they were rescinded when Democrat administrations were voted from office.

The Illinois statute at issue in Harris would have violated Florida’s Constitution, which contains a right-to-work law that outlaws fair share fees in most situations.