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In-Home Care At Center Of Supreme Court Case

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WASHINGTON — The Supreme Court will hear a First Amendment case this week involving Chicago-area in-home care providers that could end up dealing a major blow to public-sector labor unions.

States have long used Medicaid funds to pay salaries for in-home care workers to assist adults with disabilities who otherwise might have to be put in state institutions. The jobs were poorly paid and turnover was high.

Over the last decade, more than 20,000 of these workers in Illinois voted to organize and won wage increases by joining the Service Employees International Union.

But the National Right to Work Foundation, an anti-union advocacy group, sued Gov. Pat Quinn and the SEIU, accusing the state and union of conspiring to re-label private care providers as state employees so they could collect more union fees.

“This scheme is nothing more than pure political payback,” said Patrick Semmens, a director of the group, complaining that unions have helped fund Quinn’s campaign.

They are also challenging whether workers who don’t want to participate in the union should be forced to pay dues, a longtime union practice known as “fair share” fees. The lawsuit was filed on behalf of several mothers who take care of their adult children with disabilities at home and resent the idea of paying about $50 a month in union dues.

A federal judge in Chicago and the 7th U.S. Circuit Court of Appeals rejected the suit, citing Supreme Court precedents dating to 1977 that allow unions representing teachers and other public employees to collect fees from all workers, including those who object to the union.

But the Supreme Court may be ready to reconsider those precedents, and some predict that justices will use the Chicago case to do so.

Two years ago, Justice Samuel A. Alito Jr. wrote an opinion that rebuked the SEIU in a California case and said the union had wrongly collected special dues from all employees to pay for political ads. The SEIU said it intended to give refunds later to nonmembers of the union.

But Alito’s opinion went beyond the dispute over political funds and cast doubt on whether unions should continue to be able to force public employees to pay union fees even if they don’t want to. The First Amendment generally protects Americans from being forced by the government to join groups or pay for causes they oppose, he said.

“Compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights,” he wrote, joined by four fellow conservatives. “Our cases have tolerated” these forced fees for public employees in the past, and “we do not revisit (them) today.”

Conservative advocates saw Alito’s opinion as an invitation to mount a broader challenge to public-sector unions on First Amendment grounds. In California, Washington attorney Michael Carvin, who led the lawsuit against President Barack Obama’s health care plan, filed a suit in Orange County against the California Teachers Association.

He sued on behalf of 10 teachers who objected to paying $350 to $400 a year in fees to support the union. A federal judge rejected the claim in December, but the challengers plan to appeal to the 9th U.S. Circuit Court of Appeals and then the Supreme Court.

The Illinois case also grew in importance following Alito’s opinion. At first, the right-to-work lawyers had argued that Gov. Rod R. Blagojevich and his successor Quinn were wrong when they treated the in-home care workers as state employees. While they are paid through state funds, they are hired by private citizens and work in private homes, the challengers said.

Once the case of Harris v. Quinn reached the Supreme Court, the anti-union attorneys raised the stakes and urged the justices to overturn their 1977 ruling in Abood v. Detroit Board of Education, which upheld forced fees for all public employees who are represented by a union.

Lawyers said about a dozen states had authorized in-home care providers to join unions and bargain as state employees. They include California, Connecticut, Maryland, Massachusetts, Oregon and Washington. Republican governors in Ohio, Pennsylvania and Wisconsin repealed those orders, they said.

Susie Watts, a Chicago-area mother who cares for a 27-year-old daughter with disabilities at home, is glad to have the support but sees no need for a union.

“Nothing could be more meaningful for me than caring for her at home,” she said. “But I didn’t have any choice about this union. I don’t need it, and there is no opting out.”

However, Keith Kelleher, president of the SEIU Healthcare Illinois and Indiana, said the union had helped improve the lives of employees as well as those who are cared for at home. “This saves the government billions of dollars over institutions,” he said. “We don’t want to go back to the old days.”

The union contract with the state raised wages for in-home care providers from $7 an hour to $11.65 an hour this year. They also won benefits, including health insurance.

Disability rights advocates hailed the change. “We needed a stable workforce, with good wages and benefits,” said Amber Smock, director of advocacy for Access Living in Chicago. “And we did it with the SEIU.”

Harvard University law professor Benjamin Sachs, a labor law expert, said it would be “pretty radical” for the high court to strike down “fair share” fees that public-sector unions have come to rely upon.

“With all due respect, this is a public decision,” he said. “You can agree or disagree, but the decision to have collective bargaining was made by the majority.”

Just as lawyers are required to pay state bar fees, it is reasonable, he said, for employees who benefit from collective bargaining to pay a fee.

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Comments (11 Responses)

  1. vmgillen says:

    It appears the family members have been co-opted by conservatives as a union-busting tool. Consider: absent unions this work would be gleefully deemed a family obligation, with NO wages, probably falling to the women.

    Ms. Watts is collecting wages AND, no doubt, SSI-DI on behalf of her daughter. She needs to look beyond herself. Maybe she could use some respite so she can step back?

    BTW, has anyone taken a look at how much these agencies supplying direct-care workers pay management? But the only people we need to rein in are the peons. Feh.

  2. Pam Harris says:

    . . this case has always been about doing what’s right for the men and women in the Illinois Home Based Support Services program, who despite their significant disabilities are able to remain living at home with their family and near friends.

    Knowing that about 75% of these men and women choose to have a family member provide their personal support assistances, Illinois Governor Quinn signed an Executive Order compelling personal support workers to join a union, claiming they were state employees – ONLY – for the purposes of collective bargaining.

    Even after an aggressive union election and the personal support workers voting overwhelmingly for NO UNION, Governor Quinn will not rescind the Executive Order subjecting us to unwanted union campaigns and elections over and over again. Governor Quinn will not stop until we have joined a union and our homes become a union workplace.

    We are not state employees. We object to being compelled to unionize. We refuse to let our homes become union workplaces. We are doing what is right for our sons and daughters. And the Supreme Court is going to hear us.

    This waiver funding is for the care that our most vulnerable citizens need to live at home. Not a single cent should be taken away from the participant and given to a union.

    We have real fears about a union contract intruding in our home and interfering in the care for our sons and daughters.

    The incompatibility of unionism in the family home is clear. This should not even be a question.

    I am first and foremost, Josh’s mom, personal care attendant and advocate and I am 100% dedicated to providing him the supports he needs to live a meaningful life at home close to his family and friends.

  3. Kathleen Duffy says:

    Why should anyone benefit from the services of the union without paying for those services? If you are a care worker who is now receiving higher wages and health insurance, whether you are caring for your family member or a non-relative, you are receiving that because SEIU went in and negotiated that with the state. Expecting that you will pay your fair share of the expense of that process doesn’t seem to be unfair if you are accepting the benefits that resulted from those union negotiations.

  4. David Snow says:

    Union negotiated Health Insurance Benefits along with a substantial increase in hourly pay sounds pretty good. Seems like a win/win situation for the care givers and the care receivers.

  5. howard says:

    What has not been stated in this discussion is that in all of the states mentioned the services are participant-directed. This means that ‘management’ is the person receiving the services. These recipients have their own Federal employer identification numbers and receive Medicaid funds directly as a free-standing company so they can pay those who serve them, including their parents if states approve parents as providers under their waiver. Providers did not push for unionization in any of these states; they were mandated through legislation and gubernatorial edict promoted by the SEIU. The services were being provided long before unionization became an issue.

    Things might become quite interesting sometime in the future if a ‘boss’ (consumer) refuses to honor a request from a parent for time off or a pay increase. Mom and/or dad may end up on strike, refusing to provide services! Which would take precedence in such a case; vulnerable adult protections or contract language?

  6. Pam Harris says:

    The IL Home Based Support Services waiver is capped at 3x SSI. There are NO additional funds for benefits. The waiver participant (in my case, Josh) sets the wages. Not the state. Josh decides what hours I work and directs my tasks. Not the state. My training comes from Josh and his cadre of medical providers. Not the state.

    And while I am fully cognizant of my responsible to account for each penny that I am paid from Medicaid – and I dutifully account for each penny – I should not lose my First Amendment rights because I work for an adult with a disability who pays me from his Medicaid waiver.

    I am not a state employee. The state assumes no liability. Provides no benefits. And there were no personal support workers who requested the right to unionize. I am not anti-union. I am however, opposed to being designated a state employee by the stroke of the pen and then told to pick a union.

    There is an unhealthy relationship between our elected officials in IL and the public sector unions. We cannot stay silent while the family supports provided by this Medicaid waiver get taken from the individual for whom they were intended and put into the union coffers.

  7. Rosella A. Alm says:

    In response to vmgillen below, No, family members have not been co-opted by conservatives to do any union busting.

    And no, vmgillen, an adult has no legal obligation to care for and/or perform nursing services to another adult even though they are related.

    All people with disabilities are now, in modern times, able in civilized societies, to live where they want to live. Many parents, brothers, sisters and even sons and daughters are PAID to care for their disabled loved ones. Many people sacrifice a better paid job to do this because being an In-Home Service worker is very poorly paid. Without a relative to do so, a person disabled by accident, age or developmentally must hire a person to assist them. Most people like to have relatives that they trust, rather than strangers help them with their personal care.

    Keep in mind vmgillen, your kids will choose your nursing home.

  8. Ayesha says:

    Here in California the unions have done NOTHING but try to force un-necessary training on caregivers and take dues out of their already meager paychecks. There is currently a case about this in front of the Supreme Court, arguing that WE the disabled clients and our families are the employers, not the state. I set the terms of employment and choose my own caregivers. All the state does is pay. Why should my caregiver be forced to pay union dues – she has NO interest in being part of the union. Maybe if the union was fighting for fair pay such as a living wage of $13-15/hr commensurate with the skills and responsibility this job requires, we would be more supportive. But as it stands I hope the Supreme Court finds that caregivers are not public employees and should not be forced to join/pay a union.

  9. dam state employee says:

    where i work is unionized, and i tried to opt out also- union dues continued to be taken from my check, even though my request to be “out of the union” was honored. after much back & forth between myself & the union, i thought to myself, if there is no getting out ( dues wise that is ) i might as well get back in – the union & the governor are in bed together, pulled some fast ones on the members, but there is no fighting city hall- i am getting too close to retirement, & there isn’t much fight left in me- i guess the union counts on that, along with brainwashing the newer employees, whose vote screwed with my retirement

  10. Milton Blackstone says:

    I , too, resent having to pay $40 + a month from the underpaid IHSS amount I receive for caring for my son. I
    pay others who give me some relief from all the time it takes to help my severely disabled, non-verbal son who is 55 years old and has always needed full-time care. We need “right to work” legislation to give us a choice.

  11. AnnieJ says:

    “States have long used Medicaid funds to pay salaries for in-home care workers to assist adults with disabilities who otherwise might have to be put in state institutions.”

    To clarify, since Oregon is listed in the article as a place where at-home workers can be unionized, there are no state institutions in Oregon. The last one was closed in 2000. The savings of money to the state of almost any type of care is cheaper than state-run institutions, and at-home care is usually vastly superior. This non-institution cost savings is not a special benefit that the unions alone are magically providing.

    Further, in Oregon many in-home caregivers have been harassed at work (i.e., the private residences of people they serve) and at their own homes by union proponents trying to force them to join.

    To add insult to injury, the wage increase promised by the unions here to date actually doesn’t even cover the cost of the union dues caregivers would be forced to pay.

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