Head Smacker: Close to Independence Day, Supreme Court Threatens Independence for People with Disabilities


July 3, 2014

headsmacker_sqThe Supreme Court ignored some time-honored rules on Monday when it decided against unionized home care workers. Such as: “if it ain’t broke, don’t fix it,” and its corollary, “if it’s working, don’t break it.”
In Harris v. Quinn, Justice Alito wrote an opinion for the 5-vote majority that qualifies as this week’s Head Smacker because it jeopardizes a successful model of service delivery that is improving the lives of people with disabilities, treating workers fairly, and saving state dollars.

Avoiding the loss of independence that comes with institutionalization is of paramount importance to people with disabilities. Home care workers enable people to preserve their independence. This essential service works best when people who need care can choose the worker who suits them, develop a long-term relationship with a caregiver without constant turnover, and be able to fire someone who is not meeting their needs. While in the past Medicaid funds could only be used for institutional care, Illinois is one of many states that recognized it could both improve the lives of people with disabilities and save state dollars by using Medicaid to pay for home care. Further, Illinois saw that union representation of home care workers paid by the state would help increase wages and benefits, decreasing turnover. It worked: the union nearly doubled home care workers’ pay, from about $7 an hour to $12 this year, rising to $13 next year, with health insurance benefits and more training. People with disabilities got better service. The state saved money on institutional care.

The majority opinion undermines all that success by ruling that the home care workers are only “quasi” state employees, and therefore workers who choose not to join the union cannot be compelled to pay a “fair share fee.” There is longstanding precedent that workers who benefit from collective bargaining decisions despite not being union members themselves can be asked to pay a fee to cover the union’s services on their behalf. Justice Alito tried to convince his colleagues to reverse that precedent, but could not get a majority to agree. So instead he devised a spurious rationale for limiting the number of workers who could be required to pay the fee. Because home care workers were hired by individuals with disabilities, he ruled they were not really state employees.

Justice Elena Kagan wrote a dissent (following the 39-page majority opinion), with three other justices joining. She pointed out that it is not uncommon to have joint employees, with both the state and the person needing care the employers. In fact, this is the arrangement needed in order to provide the best service. As Justice Kagan writes, “…the perverse result of the majority’s decision: It penalizes the State for giving disabled persons some control over their own care.”

There is no doubt that this decision will deprive Service Employees International Union (SEIU) of revenue. SEIU represents 23,000 home care workers in Illinois and about 400,000 nationwide. American Federation of State, County and Municipal Employees (AFSCME) represents another 70,000. These workers have come together and voted for union representation. Whether or not workers join the unions, they benefit from the improvements the unions negotiate. That is why courts have since the 1970s affirmed fair share fees. Justice Kagan makes a compelling point in disputing that there is anything “quasi” about the home care workers jointly employed by the state and the individuals they care for. States pay their salaries and have a compelling interest in ensuring that they provide quality, stable care that keeps people out of nursing homes.

Unionization is playing a key role in upgrading the living standards of caregivers, who are disproportionately women of color. According to a new report from the Center for Economic and Policy Research, Women, Working Families, and Unions, almost half of all unionized workers are women; as such, collective bargaining topics of focus have moved towards a family-friendly agenda. Unionized women earn, on average, 13 percent (about $2.50 dollars per hour) more than similar non-union women. Unionized women are more likely than non-union women to have many employee-sponsored benefits, like health insurance, a retirement plan, access to family and medical leave, and paid sick days, vacation and holidays. These benefits are most felt by those at the middle and bottom of the economic ladder, in low-wage occupations and with the least amount of education.

As important as it is to increase pay and benefits for hard-working caregivers, it is just as important to recognize that people with disabilities are best served by models such as the one in Illinois. Consumers of services should have substantial autonomy in securing the care they need. The Court has no business weakening that model. State and local governments should be able to make use of democratizing approaches to service delivery, beneficial to consumers and workers alike, without depriving unions of the revenues they need to do their work.

Harris v Quinn
Head Smacker
home health care
Labor and Employment
Supreme Court