On November 22, 2013, a group of home-care providers for Medicaid recipients in Illinois filed their brief in Harris v. Quinn (No. 11-681) in which they urged the U.S. Supreme Court to overturn its precedent allowing union fair share fees to be imposed on public employees.

The Supreme Court granted the providers’ petition in October to hear the case, agreeing to review a September 2011 decision in which the Seventh Circuit Court of Appeals held that a collective bargaining agreement that requires home-care providers for Medicaid recipients to pay fair share fees to a union does not violate the First Amendment. The Seventh Circuit reasoned that the State of Illinois is a joint employer of the providers and that Supreme Court precedent permits the State, as a joint employer, to compel fair share fees in the interest of stable labor relations. 

In determining that the State was the providers’ joint employer, the Seventh Circuit reasoned that, although the hiring selection is up to the patients and the providers sign employment agreements directly with patients, the State sets the providers’ qualifications, annually reviews each provider’s performance, sets their wages and work hours, pays for training, and pays them directly.  (See our prior blog posting regarding the case here.)   

In their brief to the Supreme Court, the providers urged the Justices to overturn Abood v. Detroit Board of Education, 431 U.S. 209 (1977), in which the Supreme Court held that mandatory union fees could be imposed on public employees. The providers’ brief argued that Abood should be overruled because it failed to give adequate recognition to First Amendment rights. 

In the alternative, the providers argued that Abood should be limited to its narrow facts and to “true public employees.” Specifically, the providers argued that a government employer should be able to compel association with a union only when (1) the government is directly supervising the individuals in government workplaces and (2) the union representation does not involve matters of public concern. In support of their argument, the providers reasoned that mandatory association must be justified by compelling state interests and that “labor peace” cannot justify compelled association when the employer is not actively managing and supervising the alleged employees.   

Of the eight home-care providers who are challenging the Seventh Circuit’s decision, all but one of them care for a family member and many of them provide the care in their own homes. A series of executive orders issued by Governor Quinn and his predecessor nonetheless classified these providers as public employees for purposes of union organizing. In their brief to the Supreme Court, the providers argued that the Seventh Circuit was unjustified in relying on the concept of joint employment when it determined that the providers could be required to pay fair share fees, as joint employment is a statutory concept that arises from the National Labor Relations Act and has no relevance to the requisite constitutional analysis.

It’s too early to tell what the Court will do with Abood, but the fact that the providers straddle the line between the public and private sector will likely play a part in the Court’s analysis. The case is scheduled for oral argument on January 21, 2014. Stay tuned for further developments.