Supremes Strike Down Illinois’ “Fair Share” Law for Homecare Workers; Leave for Another Day Public Sector Fair Share Fees in General

June 30, 2014 by Susan Garea

In a 5-4 decision, the Supreme Court today struck down an Illinois law permitting a union representing homecare workers to negotiate into a collective bargaining agreement with the State an agency-fee or “fair share” provision requiring that represented homecare workers pay their fair share of the cost of union representation. The Court majority found the arrangement violates the First Amendment rights of the dissenting employees.

The decision is limited to the facts of this case – it only applies to quasi- or partial-public employees; but the majority’s rationale signals trouble ahead for all unions.

In reaching this decision, the Court did not overrule the landmark 1977 decision Abood v. Detroit Board of Education that upheld “fair share” fees in the public sector. Instead, the Court found Abood inapplicable to the Illinois homecare workers because they are “quasi-public” employees and because the collective bargaining authorized by the State statute was limited in scope. These homecare works, unlike traditional public employees, are primarily employed by the “customers” to whom the workers provide care, and employed by the State only per legislation designed to enable collective bargaining. For example, it is the private customers receiving Medicaid funding who hire, fire and supervise the homecare workers. And the Illinois statute limited collective bargaining; for example, state law requires all homecare workers receive the same pay and the union has no authority to resolve worker grievances against customers. The majority noted this limited bargaining authority in distinguishing this case from Abood where the union’s traditional bargaining authority was considered in justifying the agency fee. The Court reasoned that extending Abood to “partial public employees” is unjustified under Abood’s reasoning and would invite problems.

The Court’s conservative majority narrowed Abood to its facts (where “the union possesses the full scope of powers and duties generally available under American labor law” and the employees are full-fledged public employees) and again signaled its dislike of the decision noting that “[t]he Abood Court’s analysis is questionable on several grounds.”

The Court did not however hold that the homecare workers do not have a right to engage in collective bargaining with the State, nor did it hold that a union selected by a majority of such workers cannot serve as the exclusive bargaining representative of all such workers. The Court thus enshrined for this type of partial public employee a system akin to collective bargaining in the private sector in so-called right-to-work states where employees cannot be compelled to pay agency fees and can enjoy the benefits of union representation without having to pay anything for those benefits.

Cases raising constitutional challenges to fair share statutes are pending in California and other states and the constitutionality of the fair-share fee will most certainly come before the Supreme Court again, with respect to both the public and private sectors.

If you represent public sector employees and would like to discuss how this decision impacts you, please contact this office.

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