Compelling Personal Care Workers to Pay Union Dues Violates Our Freedom of Speech: But I Still Have to Pay My HOA Dues!

I live in a community that requires homeowner association monthly dues.  We have a homeowner association (HOA).  More than once I have complained at the high cost of these monthly dues and the absurd endeavors on which our HOA spends my money.  For example, we had a beautiful, clay tennis court.  If you have ever played tennis on a clay court, you know how wonderful it is to play on clay.  Clay tennis courts are also expensive to build.  A few years ago, my HOA decided to turn the clay tennis courts into a gardening center.  In place of the tennis nets, they built 10-12 raised beds to which the homeowners could purchase rights to use.  Somehow, my HOA determined the clay tennis court would be better used as a place to hold raised beds instead of playing tennis.

Despite my intense disapproval of this decision, I was forced to continue to pay my HOA dues, and a part of my HOA dues was spent on the conversion from tennis court to garden center.

Not completely dissimilar, in many states, public sector workers are required to contribute to union dues, even if they disagree with the union’s actions.  In-home care workers are considered public sector workers in Illinois because they care for the disabled and elderly and accept Medicaid money.  Including Illinois, 19 states allow bargaining agreements for home care workers.

Last week the Supreme Court sent shockwaves to the 19 states that allow bargaining agreements with home care workers.  The Supreme Court held that Illinois cannot compel personal care workers to pay union dues.

You may be asking yourself, why is Knicole blogging about an Illinois lawsuit and union dues.  How in the world does this affect North Carolina health care providers who accept Medicare and Medicaid?

The narrow answer would be that the case has no effect whatsoever on NC health care providers.  Unlike Illinois, North Carolina does not allow public sector bargaining.  In fact, in NC, union contracts, or bargaining contracts for public sector employees are considered “illegal, unlawful, void and of no effect.”  N.C. Gen. Stat. 95-98.

A broader view, on the other hand, is to understand that increases or decreases in personal care wages, better or worse benefits provided to personal care workers, and the overall profit or loss of personal care workers across the country, is relevant to NC personal care workers, and I prefer this broader view.

In the Supreme Court case, Harris, et al v. Quinn, Justice Alito wrote that compelling public sector workers to compensate a third party to “speak” for them, even if the worker disagrees with the third party’s speech violates the First Amendment.

In the Supreme Court opinion, Justice Alito writes:

“If we accepted Illinois’ argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Individual states determine labor laws related to government employees.  As previously stated, NC bans bargaining agreements.  Virginia does as well.

In states that do allow bargaining agreements, if workers did not want to participate in the bargaining unit, the worker would opt out of full dues and pay only the cost of grievance administration and collective bargaining.  Supposedly, this prevents the nonmembers, who benefit from the reward of collectively-bargained higher wages or better benefits, from reaping the benefits without paying for them.  The whole “free-ride” idea…

In Illinois, Service Employees International Union (SEIU), a bargaining unit, argued that personal care workers should be compelled to contribute to it because personal care workers are public sector workers.

SEIU claims that it gets higher pay and better benefits for personal care workers.  Approximately 1 million of the 3 million personal care workers nationwide are members of SEIU or other similar organizations.

However, the Supreme Court disagrees.  According to the Harris decision, I shouldn’t have to pay for HOA dues if I disagree with the HOA’s actions (I’m kidding.  Sadly, I have no case to cease paying my HOA dues).

Proponents of unions are not happy with the results, but let’s play out a hypothetical…what if the Supreme Court held that public sector workers were required to pay union dues, even against their will….

Because, think about it…the government cannot prevent us from contributing to political candidates nor can the candidate force you to contribute to a political campaign.  Upholding the freedom of speech is not necessarily anti-union.  The Supreme Court did not rule “against” unions per se.  It ruled that a bargaining unit is “bargaining for” or “speaking for” its members.  And you cannot be forced to pay for speech with which you disagree.

Free speech allows all of us to individually decide which principles to support.  Allowing personal care workers to choose not to support certain ideologies is not an attack on collective bargaining.  Rather, it ensures that the free choices of personal care workers are represented by any union entity, rather than union leaders benefiting from coerced fees.

While the Harris decision does not apply to me and my HOA dues for many reasons, including the fact that I chose to live in the community knowing that the HOA existed, the Harris decision does have possible broad ramifications, especially as to in-home care workers and other public sector workers.  It may mean that the 1 million in-home care workers now compelled to contribute to unions may have standing to stop if they so choose.

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on July 8, 2014, in Appeal Rights, Constitutional Claim, DHHS, Division of Medical Assistance, Federal Government, Federal Law, General Assembly, Health Care Providers and Services, Home Health Aide Services, Home Health Services, Hospital Medicaid Providers, Illinois Medicaid, In Home Care Services, Jurisdiction, Lawsuit, Legal Analysis, Legal Remedies for Medicaid Providers, Medicaid, Medicaid Attorney, Medicaid Providers, Medicaid Services, Medicaid Spending, Medicare, Medicare Attorney, NC, North Dakota Medicaid, Personal Care Services, Provider Medicaid Contracts, Rate Reductions, Supreme Court and tagged , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink. 3 Comments.

  1. Thanks for your analysis and analogy. I think this is an interesting decision and as I understand it Justice Scalia argued just the opposite in a prior case although he voted with the majority on this one. To explain his prior argument with your HOA analogy, while you don’t like the garden (what a mistake) there are other non-garden benefits that you gain from being a member of the HOA. Hence you are required to contribute or to buy a house in a neighborhood that does not have a high fee HOA.

    On another point, I am surprised that no one has taken this decision as it applies to corporate Political Action Committees. While it is not a requirement to join and contribute to a PAC it certainly is more than an implied expectation from corporate executives. It is an explicit understanding that as a member of senior management you should contribute. And I’d say that some of the corporate interests and candidates that are supported by PACs likely are not the individual choices of all of the PAC members. I think the Freedom of Speech issues resonates here.

    • As to the garden analogy…exactly. That is the “free-rider” theory. As for PACs, I bet the argument on the other side is that you choose to work there in a private sect. There is a huge difference between private sector and public sector workers.

  2. The personal care workers weren’t public sector workers for any purpose other than that of collective bargaining. That’s not a public sector worker.

    Paul has a wonderful point about corporate PACs, and I’ve felt the sting of that.

    “We’re taking donations over here. Please be aware that you’re not required not donate, but please put your name on any donation envelope.”

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