By Ashley S. Kircher

The U.S. Supreme Court on Friday invited the Solicitor General to file an amicus brief expressing the government’s views on whether a state can compel personal care workers to pay fair share fees to a union for representing their interests before state agencies. The Seventh Circuit recently answered this question in the affirmative in Pamela Harris et al. v. Quinn, and the plaintiff personal care workers have petitioned the Supreme Court for review.

The plaintiffs provide in-home care to disabled individuals through Medicaid waiver programs operated by the Illinois Department of Human Services, and they fall into two categories: those who are part of a program administered by the Division of Rehabilitation Services (the Rehabilitation program), and those who are part of a program administered by the Division of Developmental Disabilities (the Disabilities program).

In 2003, a majority of the care workers in the Rehabilitation program voted to designate SEIU Healthcare Illinois & Indiana as their collective bargaining representative with the state. The union and the state then negotiated a collective bargaining agreement that includes a union security clause requiring all care workers in the Rehabilitation program who are not members of the union to pay their fair share of the costs of the collective bargaining process, contract administration, and pursuing matters affecting wages, hours and other conditions of employment. (Illinois is not a “right to work” state and thus the minority of caregivers opposed to the union can still be required to pay their fair share of the dues.)

By contrast, the care workers in the Disabilities program voted in 2009 to reject unionization. Because they are not yet subject to an agreement mandating fair share payments, the Seventh Circuit held that the Disabilities program plaintiffs’ claims are not ripe for adjudication.

With respect to the Rehabilitation program plaintiffs, the Seventh Circuit rejected their arguments that they are not employed by the state and that no compelling state interests justify extending the Supreme Court’s prior collective bargaining cases to reach them. The Seventh Circuit noted that the Supreme Court has long approved collective bargaining agreements that compel dissenting, non-union members to financially support the costs of collective bargaining representation, and held that the state is a joint employer of these workers, as it has significant control over virtually every aspect of their jobs.

The court observed that while the state’s regulations leave the actual hiring selection up to the patient, the state sets the qualifications, and though the workers sign employment agreements directly with patients, the terms of the agreements are set out by the state. The court also based its decision on the fact that the state annually reviews each worker’s performance, sets their wages and work hours, pays for training, and pays them directly, withholding Social Security and federal and state taxes. The court also noted that although only the patient is technically able to fire the worker, the state can effectively do so by refusing payment for services provided by personal assistants who do not meet its standards.

In holding that the fair share fees in this case withstand First Amendment scrutiny (at least against a facial challenge to the imposition of the fees itself), the Seventh Circuit “stress[ed] the narrowness” of its decision, explaining that it was simply holding that the state could compel the workers, as employees (not contractors, health care providers, or citizens) to financially support collective bargaining representation.

The plaintiffs’ petition to the Supreme Court argues that allowing the state to require the fees violates their First Amendment rights by compelling them to support the union even if they do not support the union’s position. The plaintiffs claim that their case presents a “new and pernicious form of compelled expressive association” in which individuals who provide services to government-aid recipients are forced to associate with a private organization to petition the government over its subsidies for the services. Two amicus briefs have already been filed in the case.

Studies on the correlation between Supreme Court requests for Solicitor General amicus briefs and the Court’s ultimate grant of certiorari indicate that there is about a one-in-three chance that the Supreme Court will agree to hear the case. Stay tuned for further developments.