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.