BLOOMINGTON, Ind. -- The Supreme Court's decision today that home-health workers can't be required to pay fees to unions that represent them "opens up vast avenues for future litigation," according to Kenneth Dau-Schmidt, a labor law expert at the Indiana University Maurer School of Law.
The decision in Harris v. Quinn left intact the current basic precedents on collective bargaining but created a new exception for workers who are not “full-fledged” public employees and perhaps for public employees who don’t have access to full collective bargaining rights.
"Not only will the parties have to litigate who are 'full-fledged' public employees with full collective bargaining rights and who is not, but also what rights and responsibilities are owed to this new category of public employees," Dau-Schmidt said.
Under state and federal law, unions have an obligation to fairly represent all employees in their bargaining unit. To allow unions to recoup their expenses, current law generally allows unions to negotiate “fair-share agreements” in which nonmembers can be required to pay costs of representation. The agreements cannot require payments to support political activities.
The Supreme Court held in the 1977 Abood case that such fair-share agreements were constitutional in the public sector because they promoted the state’s interest in stability and industrial peace in its negotiations with its employees and because the agreements were limited to nonpolitical expenses.
Today, the court left the Abood precedent intact but decided it did not apply to the challenge brought by Illinois home-health employees because they were not “full-fledged” public employees. The employees are hired by their customer, but they are controlled by the customer and the state and paid by the state, with parameters for wages and benefits set in statute.
"Noticeably absent in the court’s justifications was reference to whether the cost of representation was political or not," Dau-Schmidt said. "The court seems to treat public-sector collective bargaining over wages and hours as fully protected by the First Amendment, even where there is no expressly political argument; and it states that 'except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.'"
Dau-Schmidt said today's decision "has fanned the flames of judicial regulation" that the court lit with its 2012 Knox v. SEIU decision, which limited the ability of unions to raise political funds.
"Federal and state judges have historically proven a poor forum for making labor policy because they know little of the subject and cannot create the comprehensive regulatory scheme necessary to help ensure productive labor relations and collective bargaining," he said. "Today’s opinion is one more step back from the legislative system of labor relations that we have created over the last 80 years and one step toward piecemeal regulation of collective bargaining and labor relations by the courts."
Dau-Schmidt is the Willard and Margaret Carr Professor of Labor and Employment Law at the Maurer School. He can be reached at 812-855-0697 or firstname.lastname@example.org.