Blog Archives

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.

Will Heated Disagreements over Medicaid Expansion Cause the Eradication of the Freedom of Speech?

Over last few months, I have noticed multiple examples of a state government attempting to silence opposing views, especially when it comes to Medicaid expansion/reform. Two of them, from Louisiana and Missouri, are discussed in this blog.  Those government efforts to silence protests raise serious concerns about the health of our freedom of speech.  Is our freedom of speech so limited now that we cannot express dissimilar views from those in government?  The First Amendment of our U.S. Constitution protects the freedom of speech.

Here are some out-of-state examples of attempts to thwart the freedom of speech:

Down in Louisiana, a group called Moveon.org, leased a billboard and advertised the following:

Louisiana

For obvious reasons, the Governor of Louisiana, Bobby Jindal, disapproved of the billboard and brought a lawsuit against Moveon.org in federal court requesting the federal judge to Order Moveon.org to remove the billboard.

The federal judge denied the lieutenant governor Jay Dardenne’s request for an injunction, and the billboard remains.

Similarly, in Kansas City, Missouri a couple dozen clergymen were arrested by Capitol police for singing “Amazing Grace” at the legislature.  The pastors were peacefully protesting that refusing to expand Medicaid was an “amazing disgrace.”  These pastors should have been protected by the freedom of speech and the freedom to assemble.

North Carolina is not immune from these attempts to silence disparate viewpoints.  During the 2013 General Assembly session 924 people were arrested during Moral Monday protests.  (The Moral Monday protests consist of people chanting and yelling their political views around and in the legislative building).  More have been arrested this year during the short session, which is now in session.  My firm has its office in the PNC building downtown Raleigh, so each Monday, I can hear the protestors walking the streets, chanting their cheers, and, subsequently, the police sirens.  I understand that many issues drive these Moral Monday protests and that Medicaid expansion/reform is one of these issues.

924 arrested people…that’s a lot of people arrested.  For each arrested person, taxpayers are paying for the person’s stint, however short, stay at the police station.  The police are devoting resources and time to peaceful protesters instead of violent criminals.

In an effort to stay some of these economic considerations and other considerations, the General Assembly had new Legislative Building rules ready before the beginning of the short session that would prohibit people from “making a noise loud enough to impair others’ ability to conduct a conversation in a normal tone of voice” and would provide for the arrest of those “creating an impediment to others’ free movement around the grounds.”

It is understandable that the legislators would like their offices quiet enough to hold conversations; I know my nerves get irritated by loud music or conversations outside my office door.  But is prohibiting the loud noise and arresting those noise culprits the right answer?  And who is to say what a “normal tone of voice” is.  For gracious sake, Bill Clinton argued about the definition of the word “is.”  “Normal tone of voice” is vaguer than the word “is.”  I know my husband would tell you that my normal tone of voice is “obnoxiously loud,” so is my tone of voice “normal?”

Recently Judge Carl Fox issued an Order stating that the new Legislative Building rules with phrases that include “disturbing behavior” and “disruptive signs,” are too vague to enforce.  Judge Fox stayed the General Assembly’s implementation of the new rules until a determination as to the constitutionality of the rules could be made.

As previously stated, North Carolina is not the only state that is attempting to limit speech and protests.  And the Republicans are not the only group attempting to silence opposing views.  Earlier this year, the federal government, vis-a-vis the IRS, announced that it would try to rewrite rules to limit how much political activity nonprofits can do and still qualify for tax-exempt status, which would limit the ability of social welfare charities to even discuss the political candidates close to an election (hence, inhibiting the freedom of speech).

But, first, why should we care whether people can protest at the legislature or comment on political views?

When I was a first year law school student, one of the core class requirements was Constitutional Law class.  The First Amendment to the U.S. Constitution reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

There are always exceptions to the general rule of you having the right to say whatever and wherever you like.  Despite these limitations, as of now, in America, we still celebrate the freedom of speech.

When evaluating whether a person has the freedom to say something, it is easy to get caught up on the content of the message.  Suppose I wrote something here inflammatory against women.  Many people would have a hard time discussing the constitutionality of my speech without focusing on the content of that statement.  However, our courts must look past the content of the statement to the constitutionality of the speech.

The Supreme Court set its standard for limiting the freedom of speech (that we use today) back in the 1960s.  The High Court overruled its previous “clear and present danger” standard and wrote:

“[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.

(emphasis added).  The above language was written by the Supreme Court in 1969 and was followed by the Cohen v. California case.  In Cohen, the Supreme Court overturned a conviction of a man who was wearing a shirt with the depiction: “Fuck the Draft!” inside a courtroom.  In one of the most eloquent decisions in history, Justice John Marshall Harlan, who wrote the majority opinion, stated that Cohen’s jacket constituted protected political speech.  He wrote that, despite the use of an expletive, “one man’s vulgarity is another man’s lyric.” The First Amendment recognizes enough breadth to permit a wide range of differing political views, even speech that exceeds traditional limitations of courtesy and polite behavior.

It is the logical assessment by Justice Harlan that we need to continue to implement today.  In order to determine whether we should limit a person’s freedom of speech, we must close our ears to the content of the speech and determine whether the speech is protected by the Constitution.  Read the Constitution.  Read Supreme Court cases regarding the freedom of speech.  The more polarized the content of the speech, the more likely we may be to immediately ban the speech without due regard for the Constitution.

Think about….what are your hot button topics? Abortion?  Fracking?  Stem cell research?  The death penalty?  Racism?  Now think about the worst possible thing that any person could say to you, which would incite your anger uncontrollably.  Say it to yourself in your head.  Then imagine yourself comparing the “hate speech” to whether “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.”  Does the imagined words incite you to lawless action?  Unless you imagined statements simply horrible, most likely, the words would cause you anger, frustration and resentment, but not cause you to conduct imminent lawless action.

My point is that we cannot confuse constitutionally protected speech with statements by people with differing political and moral views.  I remember my dad told me one time, “If there are two people with the exact same opinions, then one person is not necessary.”

Differing views shape our country.  But, recently, in the area of Medicaid, health care and Obamacare, people on both sides of the aisle are forgetting to step back and read the Constitution.  People on both sides of the aisle are stooping to name calling and attempts to restrict speech.  Our Constitution does not limit the freedom of speech to: “anything that will make everyone happy”…or “any statements that are aligned with the views of whoever is in charge.”

What if we lived in a country in which you are thrown in jail for placing a billboard touting your disagreement with the administration’s decisions or for singing “Amazing Grace” in a legislative building?

If we lived in a country in which you could be thrown in jail for speaking your mind, then we need to make immense amendments to our Constitution, and I also better start researching where to move.