Catherine Fisk is the Chancellor’s Professor of Law at University of California Irvine School of Law.
In Harris v. Quinn, the Court struck down an Illinois law authorizing the state to agree with the SEIU, the union that represents government-paid home care workers, that the workers must pay their fair share of the cost of the legal services that the SEIU is required by law to provide. The Court held that the contract provision requiring payment of the fair share of the costs of the services violated the government employees’ First Amendment rights to be free from providing financial support to collective bargaining. The decision disregards the Court’s longstanding principle that it will not decide questions of state law. It unsettles decades of precedent about public-sector unions, and is difficult to reconcile with the First Amendment rights of government workers or with the Court’s other cases on when compulsory fees constitute compelled speech.
Along with several other states, Illinois enacted laws deeming home health-care workers government employees. The government pays them and imposes extensive requirements governing eligibility for hire, training, hours of work, pay, and working conditions. Illinois and other states enacted laws making home health-care work government employment for the same reasons states long ago took over providing other services for the common good that in the nineteenth century had been provided by private or charitable companies, including libraries, schools, legal and medical services for the poor, and police and fire protection. State funding, training, and regulation improved the working conditions of those who provide these important services and ensured that the public who benefits from these services receives high-quality service. Home health-care workers are employees just as doctors and nurses in public hospitals and legal aid lawyers work for a patient or client who both receives and directs the provision of services, and they are employees even though they do not work in a centralized location, like park rangers, police officers, and firefighters.
A majority of home health-care workers in Illinois chose to have the SEIU represent them for purposes of collective bargaining. Under Illinois labor law, as under the labor laws governing private-sector employment and most state and local employment, when a majority of workers chooses union representation, the union represents every employee in the workplace or other job unit, including those who voted against unionization. Union governance works like political governance in that respect – the majority’s wishes govern the selection of a representative. But unions, unlike government representatives, have a legally imposed duty of fair representation; they are required by law to act in the interest of everyone they represent, not just those who voted for the union. And not only must the union bargain a contract that treats all represented employees fairly, under the duty of fair representation it must also enforce the contract on behalf of all employees, including those who voted against the union. In the half of states that have adopted so-called “right to work” legislation, and under yesterday’s decision, for Illinois home health-care workers, the union must even negotiate and enforce the contract on behalf of those employees who choose to pay nothing for the services the union is legally required to provide.
Right-to-work rules, such as the one that the Court yesterday said is constitutionally required for Illinois home health-care workers, have generated hotly contested legal fights across the United States over the sixty-plus years since Congress first authorized states to adopt them in 1947. Until yesterday’s decision, state legislatures were free to choose whether to allow employers and unions to negotiate fair share fee provisions in their labor contracts. Unions strenuously oppose them because they believe it violates their own First Amendment rights to be legally compelled to provide free legal services to people who choose not to join. And they have a point: imagine a system in which a group of neighbors decides to form a private organization to advance a cause that they believe in (whether it is neighborhood improvement, civil rights, gun rights, or religion), and a court decides that the organization has a legal obligation to represent everyone in the neighborhood and to provide free legal services even to those who refuse to join and pay. If it were a homeowners association, the ACLU, the NRA, or a church, the Supreme Court would have little trouble seeing a First Amendment violation in imposing on a nonprofit membership organization a legal duty of fair representation without the ability to require payment of fair share fees; it might see that such a duty on a nonprofit constitutes a tax on the association and the associational rights of the members of the group.
But one need not go so far as to think the Court’s rule in Harris violates the First Amendment rights of the union and its dues-paying members. Its decision is inconsistent with its own federalism jurisprudence on the deference it owes to state law. As a matter of Illinois law, home health-care workers are Illinois government employees. Yet Justice Alito’s majority opinion in Harris dismissed them as not “full-fledged” government employees and therefore created a special new First Amendment right of some indiscernible group of non “full-fledged” employees to refuse to pay the costs of union representation. The Supreme Court does not sit to decide matters of state law: Illinois treats home health-care workers as employees under state law, and the Court is bound to follow Illinois law on this matter. (The only other occasion I can recall in which the Court created a special constitutional right that turned on its own idiosyncratic resolution of a hotly disputed question of state law was in Bush v. Gore, when it halted the counting of uncounted votes based on its reading of Florida election law.
The Court’s decision that a state labor contract requiring employees to pay their fair share of the cost of contract negotiation and administration services violates the First Amendment rights of employees is also inconsistent with the Court’s jurisprudence on the First Amendment rights of government employees as well as its cases concerning when financial contributions constitute compelled speech.
In Garcetti v. Ceballos, the Court held that there is no First Amendment protection for the speech of government employees on the job in the scope of their duties. The Court therefore upheld retaliation against a Los Angeles deputy district attorney who blew the whistle on false police testimony. In United States Civil Service Commission v. National Association of Letter Carriers, in upholding the federal Hatch Act, the Court held that government civil service employees have no First Amendment right to engage in partisan political activities even on their own time. If government employees have no First Amendment rights to speak on the job on matters of public concern or to engage in political activity on their own time, including canvassing, wearing campaign buttons, or having bumper stickers on their cars, it is hard to explain why government employees have a First Amendment right to refuse to pay for legal services that their union is legally required to provide them.
The Court also fails to reconcile yesterday’s result with its decisions about when compelled financial contributions constitute compelled speech. In Keller v. California State Bar, for example, the Court upheld compulsory payment of bar dues by California lawyers. The Court failed to explain why bar dues are more important than fair share fees. All Justice Alito said in Harris was:
“Licensed attorneys are subject to detailed ethics rules, and the bar rule requiring the payment of dues was part of this regulatory scheme. The portion of the rule that we upheld served the State’s interest in regulating the legal profession and improving the quality of legal services. States also have a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices. Thus, our decision in this case is wholly consistent with our holding in Keller.”
Exactly the same could be said about home health-care workers in Harris: Illinois has an “interest in regulating [home health-care workers] and improving the quality of [home health-care] services.” Moreover, Illinois also has an interest in making sure that home health-care workers adhere to appropriate standards of care and work under conditions that enable them to do so, and in requiring all government-paid home health-care workers to contribute the cost of maintaining such a regulatory regime, just as integrated state bars have an interest in requiring all lawyers to contribute to a regime that regulates their conduct. That is exactly why the state chose to adopt a legal regime under which government-paid home health-care workers pay their fair share of regulations negotiated between the state and the union for mandatory training, compliance with minimum safety and health standards, and so forth. The Court has not distinguished Keller if I can substitute “home care services” or “home care workers” for “legal services” and “legal profession” and have all the same analysis remain unchanged.