Monday’s biggest Supreme Court headlines and hashtags greeted its decision to allow employers to plead religion and deny birth control coverage to employees under Obamacare’s new regulations. Meanwhile, the court’s ruling on Harris v. Quinn, which received less attention, undermines homecare unions in the short-term. Further, the decision could augur the death of the U.S. labor movement in its current form and is bad news for progressive urbanists who celebrated recent city changes like Seattle’s $15 an hour minimum wage.
Harris v. Quinn concerns a relatively recent organizing tactic, which uses state-level public policy to allow for the unionization of homecare employees (who are often paid by the federal- and state-funded Medicaid program). The Supreme Court decided the workers in this case are not “full-fledged public employees” of the state of Illinois and cannot be covered by the standards that cover other public sector workforces. (The majority reasons that individual clients have input and control over the details and tenure of the work performed, so the government is not the primary employer even though it pays for everything and sets broader work rules.)
The case is a spin on the so-called “right-to-work” laws that conservative anti-labor forces use to allow individual workers to benefit from unionization without paying for representation, potentially placing a substantial burden on the organization’s resources. Unions are required by law to cover every worker in a particular bargaining unit. One of the ways labor tries to prevent individuals from reaping the benefits of unionization without paying for the protections and representation is by establishing “agency fee payments,” which allow for employment in an organized workplace without being a union member as long as a minimal amount is paid to cover the costs of the unions’ bargaining efforts.
In a 1977 case, Abood v. Detroit Board of Education, the Supreme Court explicitly verified that public sector unions are allowed to utilize agency fee payments, ensuring the impossibility of getting a free ride. Harris v. Quinn establishes that Abood does not cover the 20,000 homecare workers in Illinois and that agency fee payments are therefore illegal.
The immediate ramifications of Harris v. Quinn are not immediately apparent outside of Illinois, although the consequences will probably be broadly devastating as Sheila Bapat explains in Talking Points Memo. It seems likely that other states where similar laws have been enacted will see their homecare union locals quickly threatened.
The ruling could also hamper other organizing efforts. In Washington State, for example, Service Employees International Union (SEIU) Healthcare 775NW is primarily comprised of homecare workers, and they are also the chief mover behind the fast food strikes in that state. SEIU provided the great majority of the funding for the SeaTac ballot initiative that increased that airport town’s minimum wage to $15 an hour and helped spur Seattle’s similarly successful efforts. 775NW was one of the largest single contributors in the state, providing $50,000 in support (although all of the top six were SEIU-affiliated).
Seasoned court watchers also warn of a broader threat in the decision. Written by Justice Samuel Alito, who harbors a well-known animus against organized labor, Harris v. Quinn makes numerous disparaging allusions to Abood v. The Detroit Board of Education. Alito claims the 1977 decision rests on “questionable foundations” and that the then-justices “seriously erred” and “fundamentally misunderstood” the basis for their argument.
“It’s clear that Samuel Alito believes that the Abood precedent should be overturned and he’s got at least some support for that [among the court’s other conservative justices],” says Joseph McCartin, a history professor at Georgetown University and an expert in public sector unionism. “It could be that there is only one judge who didn’t want to go that far. The long term of the Abood precedent is not assured. Justice Kagan in her dissent called it a deeply entrenched precedent, but I don’t think the unions should count on it being deeply entrenched for long.”
It’s possible the other conservatives are simply working up to it, instead of attempting to create a national “right-to-work” regime for the public sector in one fell swoop. “The Roberts court has in the past offered warnings of its future intentions to gut prior precedents or laws that have been upheld,” writes MSNBC correspondent Adam Serwer, “such as when it upheld a key section of the Voting Rights Act in 2009 before striking it down in 2013.”
The conservative movement’s campaign against public sector unionism is well-funded and well-organized. There will inevitably be additional cases working their way up from the lower courts. The website OnLabor, founded by two professors at Harvard Law School, lists four other cases that could potentially be weaponized against public sector unions.
The potential impact of such a gutting would be profound. In 2013, the union membership rate among public sector workers was 35.3 percent whereas private sector membership is a feeble 6.7 percent. If Abood is scrapped, that number will plummet and union coffers along with it.
The conservative groups that brought Harris v. Quinn to court know that political change costs money. The people who knock on doors and get out the vote need to be paid; potential politicians need to be recruited and trained; ballot initiatives and candidates need to be supported. All of that costs a lot, and if the policies a politician is pushing aren’t popular among the wealthy — a financial transactions tax, say, or a $15 minimum wage — the money needs to come from somewhere else. Unions are the only organizations with the membership and resources to consistently advocate for such policies.
Much has been made of the concept of cities as the new laboratories of progressive policy and politics. But note where these innovative urban policies have brewed up: Almost all of them are home to strong local labor movements. (There are exceptions, like Miami-Dade’s anti-wage theft law.) The groups backing the potential Philadelphia Working Families Party are mostly unions, chiefly SEIU and AFSCME, both of which would be badly wounded if public sector unions were eviscerated. Seattle’s $15 minimum wage was also largely backed by SEIU money, while the public sector Chicago Teachers Union leads the opposition to Mayor Rahm Emanuel, who comes from the Third Way-wing of the Democratic Party.
Alito would like to see movements like these die. This decision and the future implied in his takedown of Abood are meant to ensure that the institutions of business and finance can rule unchecked, in cities and states (as they already do in Washington, D.C., where regional labor’s power is drowned out). Harris v. Quinn will bring immediate pain to the Illinois SEIU local in question. But unless the composition of the Supreme Court changes in the very near future, the homecare workers won’t be bleeding alone.
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