In Harris v. Quinn, the Supreme Court issued a narrow ruling about whether a specific kind of partial-public employees in Illinois can be required to pay “fair share” fees, but the case sets the stage for a much broader challenge to fair share fees for all public employees. No. 11-681 (June 30, 2014).
In Harris, the plaintiffs were “personal assistants” who provided homecare services under the Illinois’ Home Services Program. The program allows certain individuals who are unable to live on their own due to age, illness, or injury to receive Medicaid funding for homecare services from a personal assistant. The individual receiving the care is considered the personal assistant’s employer and exercises most of the control over the employment relationship, but the State pays the personal assistant’s salary, subsidized by the federal Medicaid program.
In 2003, the Illinois Legislature passed a law that recognized personal assistants as “public employees” for the sole purpose of collective bargaining under the Illinois Public Labor Relations Act. However, the law did not extend any other benefits of public employment to the personal assistants. For example, personal assistants were not eligible for the same retirement, health insurance, or indemnification benefits typically available to public employees. Subsequently, the SEIU negotiated a collective bargaining agreement with the state that required personal assistants who did not want to join the union to pay “fair share” fees, which were deducted from the personal assistants’ Medicaid payments.
The plaintiffs in Harris challenged the fair share fees on the grounds that they violated the First Amendment by compelling them to support a union against their wishes. The lower courts rejected the plaintiffs’ argument based largely on the precedent of Abood v. Detroit Board of Education, 431 U.S. 209 (1977). In Abood, the Supreme Court held that public-sector employees who choose not to join a union may nevertheless be compelled to pay fair share fees.
The Supreme Court reversed and refused to extend the reasoning of Abood to the personal assistants in Harris. Justice Alito, writing for the majority, emphasized that the personal assistants were only considered public employees for purposes of collective bargaining, but otherwise were not full-fledged public employees. The majority held that the State failed to show that requiring these “partial-public” employees to pay fair share fees served a compelling government interest in the least restrictive manner. As a result, the fair-share fee requirement violated the personal assistants’ First Amendment rights.
In reaching its holding, however, the Harris majority devoted a substantial amount of its opinion to criticizing the Abood decision. The majority wrote that Abood had “questionable foundations,” and that the Abood Court “seriously erred” in interpreting prior precedent and “failed to appreciate” the differences between public-sector and private-sector employees. The majority also wrote that the holding in Abood relied primarily on “an unsupported empirical assumption” – namely, that fair share fees are necessary for exclusive representation in the public sector.
Although the majority in Harris stopped short of overturning the Abood decision, it essentially created a roadmap for a future challenge to Abood, which is almost certain to now occur. On the other hand, Justice Kagan, writing for the dissent, argued that the Abood decision should have controlled and that the fair share fees for personal assistants in Illinois should have been upheld based on the precedent of Abood. Justice Kagan also pre-emptively argued against any attempt to overrule Abood, writing that “[t]he Abood rule is deeply entrenched” and that “[o]ur precedent about precedent makes it impossible for this Court to reverse that decision.”
Takeaway: The Harris decision directly affects only a narrow category of employees in Illinois, but it has potentially much broader implications for public employees. Following Harris, it is highly likely that there will be a new challenge to the Supreme Court’s precedent in Abood. As for Justice Kagan’s prediction that it will be “impossible for this Court to reverse that decision,” only time will tell.