Agency Fee Clause Unconstitutional As Applied To Home Caregivers
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Agency Fee Clause Unconstitutional As Applied To Home Caregivers
June 30, 2014
Earlier today, in a long awaited 5-4 decision, the United States Supreme Court held that the Constitution prohibits collection of an agency fee from personal assistants paid by the State of Illinois to provide home health care to individuals. Harris v. Quinn, 573 U.S. ___ (2014). Such personal assistants are deemed public employees under Illinois law solely for purposes of coverage under the Illinois Public Labor Relations Act, even though the assistants are hired, directed and fired by their customers. The customers are private citizens who require in-home caregivers. The Act permits a union representing such workers to negotiate a “fair share” provision in a collective bargaining agreement with the State, which requires bargaining unit employees who do not sign a voluntary dues authorization to pay a “fair share” of union dues. Several such personal assistants challenged the imposition of the fair share fee clause, alleging that it required them to pay a fee to a union that they did not wish to support, in violation of their First Amendment rights, and the Court agreed.
This decision does not vitiate fair share fees generally in the public sector. Rather, it applies to a narrow group of home health care workers paid by the State to work under the direction and control of private third parties. The State payments are subsidized by the federal Medicaid program. The majority opinion, authored by Justice Alito, declined to apply earlier cases allowing agency fees for “full-fledged public employees” to others who are deemed public employees solely for purposes of unionization and collection of an agency fee. The majority decision does indicate, however, a high level of scrutiny for such fees when public employees are involved, and appears to invite future constitutional challenges. Justice Alito observed that any assumption that exclusive representation in the public sector is dependent on a union or agency shop is “unwarranted.”
The dissenting opinion, authored by Justice Kagan, differed sharply from the majority, but noted that one aspect of the majority opinion was cause for satisfaction, though hardly applause. The majority did not overrule an earlier decision in Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), which held that state employees who choose not to join a public sector union may nevertheless be compelled to pay an agency fee to support union work that is related to the collective bargaining process. Justice Kagan argued that requiring the home health care workers to pay an agency fee did not amount to a violation of free speech rights for the workers involved.
The CBS LLP Legal Advisory is prepared for general information purposes only. The summaries of recent court opinions and other legal developments are not necessarily inclusive of all the recent legal authority of which you should be aware when making your legal decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.
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