For organized labor, the Harris v. Quinn ruling could have been worse. Union leaders had feared a Supreme Court decision that would have put the entire public sector under a right-to-work regime, making it impossible for unions to automatically receive collective bargaining fees from employees in the workplaces they represent. Such a ruling would have struck a crippling blow against public sector unionism, and the labor movement in general.
But even though the movement escaped that worst-case scenario, it did not emerge unscathed. For Illinois’ unionized home health care workers, Harris v. Quinn was an unequivocal loss, and one that has ominous implications for the future of public sector unionism.
Justice Samuel Alito’s majority opinion stopped just short of declaring that all public sector unions could not claim bargaining fees from non-union members of their workplaces. Instead, he only ruled that unions representing workers who are “deemed to be public employees solely for the purpose of unionization and the collection of an agency fee.” That means tens of thousands of home health care workers in Illinois – the state where the Harris v. Quinn lawsuit was first filed – will now labor under a de facto right-to-work policy.
The ruling’s broader consequences remain to be seen. Various studies indicate that right-to-work laws tend to drive down union membership, which can have other consequences such as wage stagnation or increasing turnover. If that happens to Illinois’ home health care workers, it could be a few years before the effects become obvious. But the results could be devastating to a population of workers who tend to be women of color, and who are excluded from many of the legal protections afforded to workers in other industries.
“We have more stability with our union,” said Flora Johnson, a unionized home health care worker, on an SEIU conference call with reporters. “We have a voice, we have collective bargaining. We sit across the table from the state and negotiate our salary and benefits. Before the union, everything was dictated to us.”
Johnson, who cares for her disabled son full-time, earned $5.40 per hour before she joined SEIU in 2000. Now she makes $11.85, though a decline in union density could potentially threaten those gains. To prevent that from happening and shore up its own membership base, Johnson’s union is taking steps to blunt the impact of the ruling as much as possible. SEIU president Mary Kay Henry told reporters on the same conference call that the union would be discussing “a new model” for home health care worker collective bargaining in Illinois going forward. What that would look like is still up in the air.
“The discussion we’ve had is a commitment to have the conversation with the governor and the attorney general of Illinois,” said Henry. But it’s possible that a new approach to organizing home health care workers would grant the state more power over working conditions. Alito’s majority opinion, after all, separated home health care workers out from other public employees by pointing out that the state does actively manage them. Justice Elena Kagan hinted at such an outcome in her dissent when she argued that the majority opinion “penalizes the State for giving disabled persons some control over their own care.”
If the future of home health care unionization is hazy in Illinois, the nationwide implications of Harris v. Quinn are even hazier. Nobody seems to know for sure how many other unionized workers fall under dual public-private employment models like the one at the center of Alito’s majority opinion. According to Henry, “it remains to be seen, based on legal analysis which is in progress, whether it impacts workers in other states.”
But the ruling’s biggest legacy may be the groundwork it sets down for future court cases. Alito dedicated a significant chunk of his ruling to criticizing the Supreme Court’s “questionable” ruling in Abood v. Detroit Board of Education, the 1977 case which firmly established public sector unions’ ability to deduct collective bargaining fees from the paychecks of all employees in a union shop. Although Alito’s main argument is that Abood does not apply to Illinois home health care workers, he also suggests that the prior case is deeply flawed in general.
“My guess – without knowing – is that Alito and one to three other justices wanted to overturn Abood, but they couldn’t get five votes for that, so they settled on just having the unions lose in this case,” said University of Toledo law professor Joseph Slater in an email. “One to three other justices wanted to overturn Abood, but they couldn’t get five votes for that, so they settled on just having the unions lose in this case. It may have even been that at one point they thought they had five votes to overturn Abood, but in the end they didn’t.”
Instead, Alito may have written what UC Irvine law professor Richard Hasen has called an “anticipatory overruling,” laying the groundwork in this case for a later overturning of Abood. The Court didn’t make the entire public sector go right-to-work this time around, but Alito may have set the stage for it to do so in the future.
Although “very few (if any) unions” will be directly affected by Harris v. Quinn, said Slater, “they are obviously only a vote or two away from mandatory ‘right to work’ rules in the public sector.”