Jus­tices side with health work­ers who ob­ject to pay­ing union fees

Modern Healthcare - - NEWS - By Steven Ross John­son

The Hobby Lobby case wasn’t the only U.S. Supreme Court de­ci­sion last week with health­care im­pli­ca­tions. A sep­a­rate judg­ment handed down last Mon­day struck a blow to unions’ ef­forts to or­ga­nize home health work­ers.

In the case of Har­ris v. Quinn, the high court ruled 5-4 in fa­vor of a group of eight home health work­ers from Illi­nois who ob­jected to hav­ing to pay fees to the Ser­vice Em­ploy­ees In­ter­na­tional Union-Health­care Illi­nois & In­di­ana as part of the or­ga­ni­za­tion’s col­lec­tive-bar­gain­ing agree­ment with the state.

The court did not, how­ever, ex­tend the de­ci­sion to in­clude all public­sec­tor em­ploy­ees, but in­stead sin­gled out those who re­ceive state fund­ing for ser­vices but are other­wise em­ployed by a pri­vate client, which is the case for the Illi­nois home health work­ers.

The agency fees charged to Illi­nois home health work­ers who don’t join the union are in­tended as com­pen­sa­tion for the ben­e­fits they re­ceive as a re­sult of the union’s ef­forts.

In the ma­jor­ity opin­ion, Jus­tice Sa­muel Al­ito con­cludes that the union failed to show the collection of such fees were es­sen­tial to al­low­ing the or­ga­ni­za­tion to func­tion as an ad­vo­cate for work­ers.

“Even as­sum­ing that SEIU-HII has been an ef­fec­tive ad­vo­cate, the agency-fee pro­vi­sion can­not be sus­tained un­less the union could not ad­e­quately ad­vo­cate with­out the re­ceipt of non­mem­ber agency fees,” ac­cord­ing to the de­ci­sion. “No such show­ing has been made.”

It is un­clear what the rul­ing could mean for other health­care providers with sim­i­lar types of ar­range­ments.

Still, the rul­ing is a blow to pub­licem­ployee unions, which have seen mem­ber­ship de­cline but have made in­roads with the bur­geon­ing ranks of home health work­ers.

And even though the de­ci­sion im­me­di­ately af­fects only about 400,000 union­ized home health work­ers in 10 states, the ram­i­fi­ca­tions could reach other pub­lic-sec­tor em­ploy­ees be­cause of the way the

“Even as­sum­ing that SEIU-HII has been an ef­fec­tive ad­vo­cate, the agency-fee pro­vi­sion can­not be sus­tained un­less the union could not ad­e­quately ad­vo­cate with­out the re­ceipt of non­mem­ber agency fees.”

JUS­TICE SA­MUEL AL­ITO

opin­ion de­fines the work­ers as “par­tial pub­lic em­ploy­ees,” said Zev Ei­gen, an as­so­ciate pro­fes­sor of law at North­west­ern Univer­sity.

“The way the court ma­jor­ity carved it out is a func­tion of how that state de­fines the work be­ing per­formed,” Ei­gen said. “If I was the state, and I wanted to make it harder for my pub­lic sec­tor work­ers to union­ize, I would change the way the work is or­ga­nized to make them more like the health­care work­ers of Har­ris v. Quinn.”

The rul­ing drew praise from the Na­tional Right to Work Foun­da­tion, which ar­gued the case on be­half of the dis­grun­tled work­ers. The anti-union group called the agency-fee pro­vi­sion a “scheme” that “forced par­ents and other rel­a­tives tak­ing care of per­sons with dis­abil­i­ties into union po­lit­i­cal as­so­ci­a­tion.”

But some in­dus­try stake­hold­ers and ob­servers fear the rul­ing could cause work­ers to lose some of the gains made through col­lec­tive-bar­gain­ing agree­ments and jeop­ar­dize ef­forts to de­velop the work­force to care for a grow­ing pop­u­la­tion of pa­tients who need home care.

“There are at least five people on the Supreme Court who are to­tally hos­tile to unions,” said Mike Harper, pro­fes­sor of law at Bos­ton Univer­sity. “This is a way, in this par­tic­u­lar case, to un­der­mine this par­tic­u­lar union be­cause they can’t be as strong in their bar­gain­ing for the rel­a­tively poorly paid health­care work­ers if they don’t have that agency fee.”

The Para­pro­fes­sional Health­care In­sti­tute, an ad­vo­cacy group for health work­ers who care for the dis­abled, said in a writ­ten state­ment that the de­ci­sion would hin­der ef­forts to en­sure a sta­ble home­care work­force.

“In short, the court’s de­ci­sion lim­its the state’s abil­ity to de­ter­mine how best to strengthen its Med­i­caid home and com­mu­nity-based ser­vices by build­ing a sus­tain­able qual­i­fied work­force. And un­for­tu­nately, it is Illi­nois cit­i­zens who need long-term care, their fam­i­lies and the un­der­paid work­ers who pro­vide their care—who will bear the brunt of this de­ci­sion,” said Jodi Stur­geon, pres­i­dent of PHI.

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