Supreme Court strikes down fair-share fees for some homecare workers, but not for public employees in general

In Harris v. Quinn, a 5-4 majority of the United States Supreme Court holds that some Illinois homecare workers cannot be required to pay agency fees (also known as fair-share fees) if they do not join the union representing them.  The Court rules that compulsory agency fees for those workers are unconstitutional because they infringe upon the individuals’ First Amendment rights, in the opinion of the conservative justices.  However, the Court does not invalidate fair-share fees for public employees in general, despite being urged to do so by the National Right to Work Foundation.

For about forty years, since the Supreme Court case called Abood v. Detroit Federation of Teachers, it has been settled law that fair-share fees for public employees do not violate the First Amendment.  In Harris v. Quinn, the majority opinion (by Alito, joined by Roberts, Scalia, Thomas, and Kennedy) criticizes the Abood case, but the Court does not overrule it.  Instead, the Court states that Abood is limited to its facts, so that agency fee is constitutional if the workers are “full-fledged” employees of the public employer.

The Court distinguishes the Illinois homecare workers in this case, considering them to be only “partial” employees of the state.  Illinois law states that these homecare workers are “employees” of the state only for the purpose of collective bargaining, not for any other purpose.  The state pays the homecare worker, subsidized through Medicaid funding, but the individual care recipient decides the hiring, firing, duties, and other terms of the employment of the homecare worker.  The union does not have authority to grieve these decisions by the care recipient.  According to the Court’s conservative majority, the union’s duty of fair representation – to represent employees in the bargaining unit regardless whether they join the union or not – does not justify the agency fee in this context.

The dissenting opinion (by Kagan, joined by Ginsberg, Breyer, and Sotomayor) contends that it makes no difference that the homecare workers are employees of both the state and the care recipients.  The dissent points out that no one claims the union crossed the line of using agency fees for political or ideological activities, so the agency fee system already avoids infringing upon the First Amendment rights of the fair share fee-payer.  Those who do not wish to join the union as full members pay only their fair share of the cost of representation, which strikes the appropriate balance.  The union does provide representational service justifying the “fair share” rationale.  The state and the union bargain over the workforce-wide terms and conditions of employment, such as wages and benefits.  With union representation, the homecare workers’ wages nearly doubled, they got state-funded health insurance, and they got better training and safety rules.  For the purpose of constitutional scrutiny, the state is given wider latitude when it is acting as employer, as opposed to sovereign.  As a matter of conducting its own operations, the state has an interest in labor stability, which the agency fee system promotes.

Although the homecare workers in this case cannot be required to pay fair share fees, the National Right to Work Foundation has lost the greater battle.  More than 20 states, including California, have laws authorizing fair-share fees in public employment.  These laws remain standing.

By Anne Yen | June 30, 2014

Legal Developments