Home health case may have significant impact on organized labor

An Illinois home health case heard recently by the Supreme Court could reach far beyond that sector, dramatically changing the way labor unions operate across the country.
In Harris v. Quinn, nonunion private homecare workers are claiming their First Amendment rights have been violated. The workers were required to pay fees to a union that bargains on their behalf for Medicaid payment rates. The National Right to Work Committee Legal Defense Foundation, representing the plaintiffs, is arguing that all public sector bargaining is political, because it deals with state budgets. Therefore, if these groups are political, no workers should be forced to pay money into their coffers.
What must be considered in this case, said Dorie Seavey, senior policy advisor at PHI National, is that the private home health workforce is an industry unlike many others.
When people need home health services and are paying privately, they can call an agency and contract with them to find a home care worker. But when families need services that will be paid by Medicaid or other public funds, the family recruits the worker on their own, and that individual is paid directly through the state.

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It is difficult to determine the exact number of private home health workers, because the transactions are “under the table,” or as Seavey calls it, the “gray market.” But she estimates (conservatively) that there are approximately 800,000 independent home health workers receiving public funds – the fastest growing part of home healthcare.
The home health workforce tends to be under 200 percent of the federal poverty level and is highly dispersed, Seavey said. This is a particular challenge, given the number of skilled workers needed in this market as Baby Boomers age into home health services.
There is not a lot of infrastructure at the home health level, and the market is “riddled with inefficiencies,” Seavey said. States that allow collective bargaining have seen improvements in the home health industry, she added. Some states have created registries that match up consumers and private home healthcare providers.
“There are higher wages and benefit programs and some now are able to offer home care workers sick time, some paid vacation, dental and vision care, and greater training for workers and for caregivers,” she said.
Organizing for this group is more challenging than for other unions because of logistics, said Mark Neuberger, an attorney at the law firm Foley & Lardner LLP. “If you want to organize at a General Motors factory, you group everyone under the roof,” he said. Home care doesn’t work that way, so states like Illinois have given unions a boost by forcing nonunion home health workers to pay into the system.

Far-reaching implications
The Supreme Court could look at the case and make a very specific decision directed only at the home care workers in Illinois. They could also make a broad, sweeping ruling that could affect not only home health workers, but labor in all states.
One precedent the Supreme Court will consider is a previous high court ruling, Abood v. Detroit Board of Education, which found that non-union teachers had to pay into the union system because they benefited from collective bargaining. The court could look to extend that ruling to home health, or any other group of workers, that are affected by collective bargaining. 
“This is less a home care case than it is a labor case with a background of home care,” said Bill Dombi, president of the National Association for Home Care & Hospice.
Unions have a large presence in home health care in areas like California, Dombi said. If the court were to rule that they couldn’t force workers to pay into the system, it would dramatically reduce both revenue and bargaining power for unions. It could impact other groups’ nonunion workers at state and county offices as well.
Neuberger said this case is unusual because one would typically expect the conservative majority on the Supreme Court to rule in favor of workers and against the union, but that might not ring true in this case. Conservatives could say the case is a state’s right issue and the Illinois law should be upheld.
If they uphold the Illinois law or carve out a new ruling specifically for this group, there may not be many implications for unions. If they overrule Abood, and say the state can’t force nonunion workers to pay for collective bargaining, the impact could be wide reaching.
“From a pure labor relations standpoint, it could affect all public sector employees in all states,” he said. “And it could affect constitutional issues of right of association. It would really hurt unions organizing public sector employees if the workers win.”