I was in a labor union and have been on strike; I happily paid my dues to Local 2325 of the UAW because I thought my brothers and sisters greatly benefitted from collective bargaining. But that is just my opinion, and no group of workers must be represented by a union unless a majority agrees, and no individual worker need join a union at all. But those who decline to become a member of a union that a majority of their fellow workers chose often must pay an agency fee, to reimburse the union for benefits which accrue to all.
That’s essentially the issue in Harris v. Quinn, which Kent Greenfield has already aptly described as a potential sleeper on the Supreme Court’s docket: Are workers’ First Amendment rights impaired, not by being forced to join a union (which they are not) but by being forced to pay for collective bargaining (which they are)? The Court could use the case to limit the ability of government workers to unionize, to eliminate any required payment of agency fees by non-members benefitting from the contract, or undermine the principle, embodied in the National Labor Relations Act, of exclusive representation by a single union. All of these would be unfortunate, and would require repudiation of a line of Supreme Court decisions dating to the unanimous Railway Employees v. Hanson, 351 U.S. 225 (1956), which found no problem in a federal law allowing negotiation of contracts requiring all covered workers to pay union dues, rejecting dissenting workers’ claims that mandatory payment of dues compelled "ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought protected by the Bill of Rights."
Harris involves home health care aides provided by the state of Illinois to certain ill people through Medicaid. The case is maddening in a number of ways. The plaintiffs—represented by, among others, former Acting Solicitor General Neal Katyal—insist that the workers at issue cannot be considered government employees, even though they get paychecks and health benefits from the state, must meet qualifications set by state regulations, and perform duties as required by those regulations and by individual social service supervisors. Although the aides are “hired” and “fired” by the individual patients they serve, that is only so because the state in its generosity has delegated that authority. The patients, who pay nothing both because of the rules of the program and because they are indigent, are not in any ordinary sense “employers.”
Like many residents of the Town of Greece, New York, Susan Galloway and Linda Stephens regularly attended the Town Board’s monthly meetings, where votes would be held on proposed ordinances, residents’ input would be solicited and public business would be conducted. Historically, the Town Board began each meeting with a moment of silence, a practice that was replaced by a prayer in 1999. In 2007, Galloway and Stephens complained that the prayers “aligned the town with Christianity” and “were sectarian rather than secular.” In response, the Town scheduled three non-Christians to deliver prayers at a third of the Board meetings in 2008, the year in which Galloway and Stephens filed a lawsuit against the Town. But in the following eighteen months, only Christian clergy delivered the prayer.
Galloway and Stephens’ lawsuit alleges that the Town violated the Constitution’s Establishment Clause in two ways: (1) its procedure for selecting prayer-givers unconstitutionally “prefer[red] Christianity over other faiths,” and (2) it allowed individual citizens to deliver “sectarian” prayers. To engage with this argument, ACS Student Chapters have held events on Town of Greece v. Galloway, which was heard before the Court last month. Gregory Lipper, Senior Litigation Counsel at Americans United for Separation of Church and State, spoke with the Georgetown ACS Student Chapter about the case. “You certainly do not need to be the Pope to know that that is a Christian prayer,” he said, when describing how explicit the opening prayers were at the Town’s meetings.
Addressing the law students, Lipper explained that the Town-appointed chaplain of the month often asked the meetings’ attendees for some form of participation in the prayer, such as bowing their heads, standing, or responding “Amen” as members of the Board stood behind him. As a result, individuals often felt that noncompliance would alienate the Board, the body they had yet to address with their request or case. Lipper claimed that the prayers were not only denominational but also coercive, effectively requiring meeting attendees to participate or risk losing government and/or social support. “Because citizens are there to petition their government, it is especially important that these meetings be inclusive,” he added. “This is where the Town has fallen woefully short.”
by Kent Greenfield, Professor of Law and Law Fund Research Scholar, Boston College Law School
Most cases on the Supreme Court’s docket in any given year are not the likes of Windsor, Shelby County, or Fisher. Those get the headlines, of course, and rightly so. But most of of the Court’s caseload is dedicated to answering various arcane questions in eddies of the U.S. Code. By virtue of its position at the top of the judicial hierarchy, one of the Court’s primary jobs — still — is to be the final arbiter of these kinds of questions when the lower courts disagree. Only the most fastidious Court watchers pay much attention. (Back when I was clerking on the Court almost twenty years ago, I worked on a case that decided the statute of limitations for the Worker Adjustment and Retraining Notification Act. I’m shocked — shocked! — you don’t remember it.)
So looking over the January argument list, no one would blame you if, at first glance, you assumed Harris v. Quinn falls into this group. The question presented appears to be exceedingly narrow and specific — whether home health care workers in Illinois, paid for by Medicaid, are state employees. If they are, then a union representing state employees will be under a duty to bargain collectively on their behalf, and the workers will be required to pay their “fair share” of the costs of such union representation. The case arose when some health care workers covered by the collective bargaining agreement challenged the mandatory union fees as a violation of the First Amendment.
The Seventh Circuit decided the case in a terse, unanimous opinion. For nearly forty years, since Abood v. Detroit Board of Education, the law has been settled that public employees “may be compelled to support legitimate, non-ideological, union activities germane to collective-bargaining representation.” It is the quid pro quo of labor law: the unions are under a duty to represent all employees in the bargaining unit; in return, the employees are prohibited from free-riding.
The past few Terms have been tumultuous for First Amendment doctrine, and this Term is shaping up to be another First Amendment blockbuster, with cases like Hobby Lobby Stores, Inc. v. Sebelius and McCutcheon v. FEC on deck. But for labor unions, another First Amendment case has potential to be the biggest game changer: In January, the Court will hear argument in Harris v. Quinn, a First Amendment case about union representation in the public sector. At stake are two important questions: first, the extent to which states can allow homecare workers who are paid by the state to be represented by a union; and second, whether public employees have a constitutional right to refuse to pay for the costs of union representation. Thus, while Harris involves an Illinois statute that allows homecare workers to bargain collectively, it has the potential to affect the structure of public sector bargaining throughout the country.
Illinois is deeply vested in improving working conditions for homecare providers – not only do better wages and working conditions mean more stability in the profession (which is good for consumers), but the state also administers many of the programs that fund homecare workers. Under these programs, while consumers or their guardians choose their own homecare workers and direct their day-to-day work, Illinois determines the number of hours they can work, defines minimal standards, creates training opportunities, and sets the workers’ wages and issues their paychecks, among other job parameters. This division of responsibility between state and consumer sets the stage for Illinois’s decision to allow homecare workers to form a union, and is a primary reason for the legal challenge in Harris.
Specifically, elected officials made the proprietary decision that homecare workers – a group that defies the traditional hallmarks of a centralized workforce – are entitled to the same right as myriad other workers: the right to choose whether to form a union. The scope of that right, however, is carefully circumscribed by statute. The majority-approved union may bargain only with the state (not with consumers), and only over the economic conditions that the state controls, such as wages, benefits, training, and certain other working conditions.
Most discussions of whether Hobby Lobby and Conestoga Wood are protected by the Religious Freedom Restoration Act (RFRA) as corporations have focused on their for-profit character. This is something of a red herring; for-profit character matters, but not in the way most people think. As law professors Micah Schwartzman, Richard Schragger and Nelson Tebbe have pointed out (see here and here), what disqualifies a corporation from RFRA protection is as much its size as its for-profit character.
The corporate plaintiffs in Hobby Lobby, for example, insist that they “believe” and “practice” the religion of their owners because they are “family businesses” and “closely held” corporations that have very few shareholders. This self-description evokes the stereotypical image of the small-town “mom-and-pop” grocery store, staffed mostly by an extended family whose members greet everyone by name and whose customers, suppliers and other employees uniformly identify as the “real” owners irrespective of legal formalities.
Federal laws are frequently sensitive to the needs of such genuinely small businesses. For example, Title VII of the Civil Rights Act exempts businesses with fewer than 15 employees, and the Fair Housing Act similarly does not apply to small apartment complexes where the owner resides on the premises. The ACA itself exempts businesses with fewer than 50 employees from the employer mandate to provide employee healthcare insurance.
The corporations here are light years away from the “mom-and-pop” stereotype. Hobby Lobby and its affiliates employ 13,400 people in 600 locations scattered through 39 states (including a 3.4 million square foot headquarters complex). Forbesestimates its annual revenue at substantially more than $2 billion.