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“Partial Public Employees” Not Required to Pay Agency Fee to Union, Rules U.S. Supreme Court in Harris v. Quinn

Submitted By Firm: Holland & Hart LLP

Contact(s): Bradley T. Cave, Judith A. Biggs, Roger Y. Tsai


R. Calder Huntington

Date Published: 7/1/2014

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Yesterday the U.S. Supreme Court ruled that the First Amendment prohibits the mandatory collection of a union's agency fee from certain in-home care providers who are paid by the government but who are employed by the individuals for whom they provide care, in a hotly contested 5-4 decision. Harris v. Quinn, 573 U.S. ___ (2014). While not overruling earlier precedent that upheld mandatory agency fees for public employees, Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Court refused to extend that ruling to this group of what the majority called "partial public employees." Because today's ruling was limited to this uniquely-situated group, organized labor dodged a bullet as a broader application of First Amendment rights to public employee agency fees could have turned virtually all public sector jobs into "right to work" positions.

Personal In-home Care Assistants Objected to Union Agency Fees

At issue in the Harris case was an Illinois labor law that authorizes state employees to join labor unions and requires members of a bargaining unit who do not want to join the union to pay an "agency fee" to the union. Deducted by the employer from the worker's pay, the agency fee is intended to pay that worker's "fair share" toward the collective-bargaining process and contract administration since the union must represent all individuals in the bargaining unit whether they choose to join the union and pay "dues" or not.

The workers in this case are personal care providers ("personal assistants") who provide in-home services to elderly family members or disabled individuals under the Illinois Rehabilitation Program. Like similar programs in most states, Illinois's program allows for participants to hire personal assistants to provide homecare services and the State, subsidized by the federal Medicaid program, pays the personal assistants' wages. Other than providing compensation, the State does not otherwise control the employer-employee relationship as the participant is free to hire, train, direct, evaluate, supervise, and discharge their personal assistants.

In 2003, Illinois amended its Public Labor Relations Act to declare that personal assistants were public employees for labor relations and collective bargaining purposes, but for no other purpose. Personal assistants were not state employees for any other purposes and were not eligible for state employee benefits. Shortly thereafter, the SEIU was voted in as the exclusive union for the personal assistants for purposes of collective bargaining. The agreement reached between the SEIU and the State of Illinois contained an agency fee provision, requiring all personal assistants who were not members of the union to pay a "fair share" of the union dues. A group of personal assistants filed a class action alleging that that the Illinois law authorizing mandatory agency fees violated the First Amendment as the fee provision requires them to pay a fee to a union that they do not want to support.

Personal Assistants Are Not Full-Fledged Public Employees

The Court determined that the personal assistants at issue are employed by the individuals for whom they performed in-home care services, not by the State. They are not entitled to the rights and benefits afforded to other public employees and therefore, are only "partial" public employees. Moreover, because Illinois law requires that all personal assistants receive the same rate of pay and the union has no authority over any disputes between a personal assistant and their individual employer (eliminating the benefits of union grievance procedures), the justification behind allowing required agency fees did not apply to these workers. Accordingly, the Court ruled that the rationale behind the mandatory collection of agency fees from public employees did not overcome the personal assistants' First Amendment objections to supporting a union. Therefore, the Court held that the First Amendment prohibits the mandatory imposition of agency fees on personal assistants who did not want to join or support the union.

Past Precedent in Abood case Questioned but Not Overruled

In defending its law, the State of Illinois argued that the Supreme Court's 1977 decision in Abood applied to the personal assistants in this case. Abood held that a government entity may, consistently with the First Amendment, require public employees to pay a fair share of the union's cost in negotiating on their behalf for better terms of employment. Justice Kagan's dissent states that the Abood case offers the definitive answer in this case, meaning that the agency fee requirement for the personal assistants should be upheld. The majority, however, disagreed, stating that the analysis in Abood was questionable as it was based on precedent that was "thin" on First Amendment analysis and was not decided on constitutional grounds. Despite the "questionable foundations" of Abood, however, the majority refrained from overruling Abood as the current case was distinguishable due to the unique "partial public employee" status of the workers.

First Amendment Trumps Objectives of Agency Fee Provision

After refusing to extend Abood in this case, the Court then evaluated whether the agency fee provision serves a compelling state interest that cannot be achieved through means that are less restrictive on the personal assistants' First Amendment rights. The majority concluded that the interests of "labor peace" and funding the union's promotion of the personal assistants' welfare were insufficient to overcome the restriction on the associational freedoms guaranteed under the First Amendment. Therefore, the Court struck down the Illinois law requiring that personal assistants under the state's Rehabilitation Program who do not wish to join the union pay an agency fee.

Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justice Kagan filed a dissent which was joined by Justices Ginsburg, Breyer, and Sotomayor.

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