Charlotte Garden teaches labor & constitutional law at Seattle University School of Law, where she is an assistant professor and Litigation Director of the Korematsu Center for Law & Equality. She co-authored the amicus brief filed by thirty-four labor law professors in support of the respondents in this case. Follow her on Twitter @ProfCGarden.
The Harris v. Quinn Court created a new category of employees –partial public employees – and endowed them with a different set of First Amendment rights than full-fledged public employees. The immediate consequence of this rule is that Illinois home health-care aides are no longer required to contribute to the union that represents them in bargaining. But that holding – while narrower than many Court-watchers expected – will nonetheless have meaningful consequences for workers, government employers, and the First Amendment.
Abood’s status quo ante
Before this week’s decision, Illinois’s union-represented home health-care aides could choose either to join their union and pay the full amount of union dues, or to refrain from joining the union while paying a lower “agency fee.” This fee reflects the union’s per-worker costs of bargaining and contract administration; agency fee-payers do not contribute towards the union’s other activities, such as its political advocacy. This arrangement was first approved in the public sector in Abood v. Detroit Board of Education, which the plaintiff home health-care workers in the case asked the Court to overturn. Abood approved the constitutionality of the agency fee because it eliminated the potential for free riding – a possibility that would otherwise be present because unions must represent each member of a bargaining unit fairly, whether or not that worker pays for such representation. This arrangement is known in labor law as the “agency shop,” and it stands in contrast to the “open shop,” in which workers may be represented by a union without paying anything towards the costs of representation.
Abood did not require public-sector employers to adopt the agency shop. Rather, it is one of an array of labor relations models that public-sector employers are free to adopt. Alternatively, they can adopt an “open shop” model, or they can decide not to permit public-sector bargaining at all. In addition, they may restrict the topics on which employees may bargain, or they may limit employee collective action in other ways, such as by banning strikes. As a result, government employers have adopted a wide variety of labor relations models – as Matthew Bodie and I argued in our amicus brief on behalf of labor law professors, this is an area in which the “states as laboratories” metaphor is truly an apt one.
“Partial Public Employees”
Against this backdrop, Justice Alito concluded that it would require an unconstitutional extension of Abood to permit the agency shop in the context of “partial public employees” – a newly created name for workers who are supervised on a day-to-day basis by a private individual, but whose pay, benefits, and minimum qualifications are set by the state. This was because, as he put it, “Abood’s rationale, whatever its strengths and weaknesses, is based on the assumption that the union possesses the full scope of powers and duties generally available under American labor law.”
But this statement wrongly implies that there is a single model of labor law in the public sector, when in fact, there are many. In some states, public-sector bargaining with full-fledged employees is just as constrained as the bargaining on behalf of home health-care workers that Justice Alito criticized as “sharply circumscribed.” For example, Governor Scott Walker’s hotly contested labor law reform in Wisconsin severely restricts the subjects of public-sector bargaining, going so far as to limit union negotiations to the subject of pay increases, which may not outpace inflation. Counter to Justice Alito’s premise, limited public-sector bargaining is hardly unique to the “partial public employees” in Harris.
New First Amendment principles for public employment?
So, one way to view Harris is as a new constitutional constraint on how states may structure their labor relations when they are dealing with workers like the home health-care aides in this case. This in itself is a departure from recent cases, in which the Court has emphasized that public-sector employers must have much of the same managerial leeway as their private sector counterparts. Significantly, those earlier cases repeatedly held that this leeway includes authority for public employers to limit their employees’ job-related speech; just this Term in Lane v. Franks, the Court unanimously re-affirmed its holding from Garcetti v. Ceballos that public-sector employees receive no First Amendment protection at all for speech they are required to engage in as part of their jobs.
Concern for public sector employers’ freedom to manage their employees was also lurking behind Justice Scalia’s pointed questions to Harris’s counsel at argument. Those questions concerned whether a public-sector employee’s demand for a raise could become a matter of public concern entitled to First Amendment protection. The petitioners’ answer – that this was a “matter of scale” depending on whether the raise was for one employee or many – is reflected in Justice Alito’s opinion, which distinguishes a bargaining demand that all home care workers receive a raise from a lone worker’s demand that will have “a negligible impact on public coffers.” In sum, Harris concluded that the former is a matter of public concern, while the latter is not.
This holding, that employee demands become matters of public concern when they reach a certain size, has potential to meaningfully expand constitutional workplace protections for public-sector employees. After Garcetti and Borough of Duryea v. Guarnieri, public-sector employees were generally left without First Amendment protection when they made internal workplace complaints or demands of their supervisors. This meant that in order to retain First Amendment protection, they had to make their complaints externally – potentially airing their employers’ dirty laundry to the world, much like the letter writer in Pickering v. Board of Education. But Harris suggests an alternative – employees could also band together with their co-workers to present their demand together. If there are enough of them, perhaps the “negligible” demand of Guarnieri will become the “matter of great public concern” of Harris. Ironically, then, Monday’s decision might have the effect of encouraging, rather than discouraging, collective action. To be sure, the Court may limit this analysis to the collective bargaining context, dampening any real impact. But it will be interesting to see where the line will be drawn.
Preventing effective employer-employee partnerships
What is certain for now, though, is that Harris created a category of workers who may unionize only if their public employer adopts the open shop/free-rider model. In so doing, Harris removes from government employers one way of managing their workforces. This may seem like a small detail; after all, states may still allow their “partial public employees” to unionize, just not under the agency shop model. But the risk to states (as well as unions and workers who desire union representation) of the open shop is that if too many union-represented workers decide to free ride, it will weaken the union’s ability to robustly represent all of the workers in the bargaining unit. In essence, unions will be required to do more with less, stretching the dues and fees paid by a subset of workers to fulfill their duty of fair representation to all workers. While many (though not all) private employers might welcome this state of affairs, the same is not necessarily true of public-sector employers. Justice Alito recited some of the reasons for this; chief among them, unions can provide a conduit for workers to relate feedback to their state employer. This function is probably most important as it applies to workers like those in Harris, who work in private homes located all over the state, and who have little regular contact with the state. In other words, the reason the Court was skeptical of the union arrangement in Harris was, from the state’s perspective, one of the most important reasons to permit the home health-care aides to form a union in the first place.
This leaves Illinois and similar states with a few options. In the short term, Illinois must begin to allow home health-care workers to opt out of the agency fee. The impact here will likely be small; given the hard-fought benefits won by the union in recent negotiations (increased wages, and improved training and benefits), the majority of workers will probably continue to pay. However, other states considering adopting a collective bargaining model for their non-traditional employees will have to consider Harris’s impact. Justice Alito’s detailed attention to the particularities of Illinois’s management of its home health-care workforce may give states with somewhat different arrangements a basis to argue that they should not be covered by the decision. But even if Harris’s reach extends more broadly, states may be able to avoid its consequences by increasing their supervision over home health-care aides, as Justice Kagan implied. Unfortunately, this could come at the cost of depriving consumers of some amount of day-to-day control over service providers.
Ultimately, then, Harris’s real-world impact is most likely to be real, but limited in scope. Further, and contrary to what some have predicted, I do not anticipate that it will be the precursor to overturning Abood in the next couple of years. After all, Justice Alito laid the groundwork for such a decision in Knox v. SEIU, and the issue was thoroughly briefed and argued in Harris. While we may never know why the Harris majority stopped short of taking the step that they presaged in Knox, I predict the Court will be reluctant to revisit this issue again soon.
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioner in Lane v. Franks and was among counsel on an amicus brief in Harris. The author of this post is not affiliated with the law firm.