Harris v. Quinn: Why the Court Should Deny Review

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

Max has an excellent Explainer on Harris v. Quinn, a seventh circuit case involving the homecare workers’ union in Illinois.  The Supreme Court conferenced on a cert. petition in Harris yesterday.  The question raised by the petition is whether the “fair share” provision contained in the contract between the union and the state – a provision that requires workers to pay fees to cover collective bargaining and contract administration costs – is constitutional.

A lot could be said to critique this petition and the litigation that came before it.  In my view, the arguments presented by the petitioners amount more to a policy attack on homecare unions than a legal argument about the constitutionality of fair share provisions.  The petitioners’ claims were dismissed by the district court as failing to state a claim; they were soundly rejected by the court of appeals in an opinion authored by Daniel Manion, a Reagan appointee.  There is no circuit split on the questions ostensibly raised in the case; indeed, no split of authority is even alleged.

There are a slew of reasons why this case is not fit for Supreme Court review.  Here, I focus on just a few.

The court of appeals’ decision turned on the question of whether these homecare workers – called “personal assistants” – are State employees.  That’s because if the personal assistants are State employees, then the constitutional analysis in the case is entirely straightforward: the Court’s decision in Abood governs and the fair share agreement is constitutional.

The seventh circuit determined that the personal assistants are jointly employed by the individual in whose home they work and by the State of Illinois.  That means that the workers are State employees, at least for collective bargaining purposes.  To reach this holding, the seventh circuit engaged in a careful and fact-specific inquiry.  The court’s analysis went like this:

One, the court paid no attention to the fact that Illinois had designated the personal assistants state employees.  As the court put it, “[t]he label affixed by a state . . . is not sufficient to designate the relationship ‘employment.’”  Thus, rather than accepting the State’s designation, the court held that it had to “consider the relationship itself and decide whether the State is an employer. . . .”

Two, the seventh circuit deployed a conventional definition of the term employer: “A person who controls and directs a worker under an express or implied contract of hire and who pays the worker’s salary or wages.”

Three, the court drew on a long line of labor law precedent – including Supreme Court precedent – for the proposition that “more than one person or company may be an individual’s employer.”   So, “both the home-care patient and the State may be employers if they each exercise significant control over the personal assistants.”

Four, the court looked in great detail at the degree of control that the State of Illinois exercises over the personal assistants.  The State, held the seventh circuit, has “significant control over virtually every aspect of a personal assistant’s job.”  It explained:

While the home-care regulations leave the actual hiring selection up to the home-care patient, the State sets the qualifications and evaluates the patient’s choice.  And while only the patient may technically be able to fire a personal assistant, the State may effectively do so by refusing payment for services provided by personal assistants who do not meet the State’s standards.  When it comes to controlling the day-to-day work of a personal assistant, the State exercises its control by approving a mandatory service plan that lays out a personal assistant’s job responsibilities and work conditions and annually reviews each personal assistant’s performance.  Finally, the State controls all of the economic aspects of employment: it sets salaries and work hours, pays for training, and pays all wages – twice a month, directly to the personal assistant after withholding federal and state taxes.

Five, having looked in detail at the employment relationship, the court held that it had “no difficulty concluding that the State employs personal assistants within the meaning of Abood.”

The petitioners in Harris, represented by the National Right to Work Legal Defense Foundation, would like the Court to be concerned about a threat that is not actually present in this case.  In essence, the cert. petition operates by suggesting that, should the seventh circuit decision stand, a state could simply deem some group of citizens to be “public employees” and thereby bring those “employees” – who are actually just citizens – within the coverage of Abood.  Once a state did that, it could then call a union election among the “employees” and, if the union wins, require all the “employees” to support the union.

But such a threat is nowhere to be found in this case.  As the above shows, the seventh circuit conducted a detailed and context-specific inquiry designed to ensure that the state could not and did not simply deem a group of citizens to be employees.  Again, the circuit court stated that “[t]he label affixed by a state . . . is not sufficient to designate the relationship ‘employment.’”  Instead, the court looked at the facts on the ground and held that where those facts point to employment on a traditional definition the case is governed by Abood.

So, what exactly would the Supreme Court decide in this case should it grant review?  That the court below got the facts wrong about the existence of an employment relationship?

It is also worth saying here that, although this case can – and was – easily resolved under Abood, there are several lines of Court precedent that support the Illinois program.  Outside of the union dues context, the Court has held that states may compel individuals to support private organizations when that compelled financial support is in furtherance of a legitimate state interest and if the dues required go only to activities germane to that interest.  In the bar association cases (Lathrop and Keller), for example, the Court upheld systems in which states require lawyers to pay dues to private organizations – i.e., bar associations.  Why?  Because, the Court held, the state has a legitimate interest in ensuring the educational and ethical standards of lawyers in its jurisdiction and because the state can reasonably determine that requiring lawyers to pay for the services of a bar association is an appropriate means of securing that interest.

Whether or not personal assistants in Illinois qualify as employees under a traditional test – and, again, they do – Illinois has a substantial interest in ensuring the success of its homecare program.  Personal assistants provide services through a state-run Medicaid program, one that the state funds and operates so that patients can receive care in their homes rather than in institutions.  As the literature on this subject reveals, ensuring there is a labor force sufficient to carry out such a homecare program is no easy trick.  Turnover is endemic, training is a problem, and morale problems plague the industry.  A state surely could reasonably conclude, as Illinois did, that the best way to ensure the availability of a stable, qualified, and harmonious labor force is to give the workers populating that labor force a voice in the determination of their conditions of employment.  That way the state could take actual employee preferences into account on questions like how compensation will be distributed between wages and benefits, how training should be designed and administered, and how morale can be maintained.  And certainly the state is justified in concluding that the way to provide that voice – perhaps particularly for a workforce as dispersed as homecare providers – is through a collective representative.

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