On June 30, 2014, the Supreme Court ruled unenforceable an Illinois “fair share” law that requires in-home health care service providers to pay union fees. Harris v. Quinn, 573 U.S. ____ (2014). The Court described the petitioners as “partial public employees,” and therefore, compelling them to pay fees to a union that they did not wish to join or support violated their First Amendment rights.
Illinois, like many other states, has instituted a Rehabilitation Program that allows disabled persons to hire their own “personal assistants” to provide in-home health care. While Illinois pays the personal assistants’ salaries, provides health insurance, sets minimum employment qualifications, assists with performance reviews, and suggests certain duties that personal assistants should perform, the Rehabilitation Program designates the disabled persons, referred to as “customers,” as the personal assistants’ employers. The customer controls all day-to-day aspects of the employment relationship, including hiring, training, establishing duties, evaluating job performance, and if necessary, terminating the employment relationship.
However, the Illinois Public Labor Relations Act (the Act) provides that personal assistants are public employees of the State of Illinois for the purposes of collective bargaining. Under the Act, a collective bargaining agreement (CBA) may require non-union member employees covered by the agreement to pay a fee to the union for their “fair share.” SEIU Healthcare Illinois & Indiana (SEIU-HII), the personal assistants’ elected representative, entered into a CBA with the State of Illinois that contains such a “fair share” provision.
The Harris petitioners argued that this provision violated their First Amendment rights because the required fees compelled their association with and subsidized speech by a union they did not support. The district court dismissed their claims, and the Seventh Circuit agreed, holding that the personal assistants are employed not only by customers who receive in-home care, but also by the State.
The Supreme Court disagreed, and overturned the Seventh Circuit’s decision. In doing so, the Court deeply criticized its own 1977 holding in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). The Court explained that the fair share provisions approved of in Abood are meant to prevent non-union members from “free-riding” on the union’s efforts without sharing in the costs. However, here, where the union’s bargaining authority is limited, the risk of free-riders is minimized. Thus, when individuals are “deemed to be public employees solely for the purpose of unionization and the collection of an agency fee,” Abood should not apply.
While the Harris decision is limited to the Illinois in-home personal assistants, other such “quasi-public” employees in other states who are covered by CBAs with fair share provisions may follow suit and attempt to invalidate comparable provisions in their own states’ laws. Also, while Abood remains good law, the Court’s attack raises serious questions on compelling fair share fees in the public sector, and leaves open the possibility of the current Court overturning Abood if it is faced with a direct challenge.
For questions regarding this decision, please contact any member of Schiff Hardin’s Labor and Employment Group.