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In 2003, Illinois allowed home-care workers taking care of disabled people to become unionized. Many are relatives of those they are caring for. The state pays these caregivers through Medicaid in order to help keep the disabled out of group homes, which are potentially more expensive and less effective. The state’s logic is that because these caregivers are paid through Medicaid, even if they are family members they are technically state employees — and therefore benefit from state union representation.
About 20,000 Illinois residents currently pay some $3.6 million in union dues as caregivers.
The National Right to Work Foundation and its allies contend that it is wrong to consider home aides to be state employees. And they say that requiring anyone — whether a home caregiver or a more traditional union employee — to pay compulsory fees violates First Amendment rights.
“The idea that in order for a citizen to work for their government they can be forced to subsidize the speech of a private organization for representation they don’t want and never asked for, is contrary to the very core of the First Amendment,” Patrick Semmens, the vice president of the foundation, said in a news release. “Union power achieved through forcing employees to associate with the union or to pay monies to the union should be seen as illegitimate.”
In its deliberations, the Supreme Court will have to consider a 1967 case called Abood v. Detroit Board of Education, which upheld that public unions, just like their private counterparts, could collect mandatory dues.
If the court overrules Abood, it would be a huge hit to unions. But experts are guardedly confident that won’t happen. The court has ruled that the public sector is just like the private one in some key ways. For example, it upheld that it is not a violation of the First Amendment if a public sector employee is fired for saying something negative about his or her employer.
“We give the states the ability to run as an employer, and that’s kind of what’s happening in Harris,” said Harvard Law School professor Benjamin Sachs. “So to do what the National Right to Work Foundation is asking them to do, they’d really have to upset a lot of doctrine regarding the First Amendment."
But Sachs and others say the court could still harm unions in other ways, for example by ruling that home care workers are not eligible for unionization because of the individualized nature of their work. Semmens of the National Right to Work Foundation said he would consider that a “step in the right direction.”
Illinois union members and advocates worry about that outcome the most. They say it would not only harm the union, but would increase the likelihood that those paid through Medicaid to care for disabled relatives would see their pay rolled back.
That could cause a wave of families becoming unable to afford keeping disabled relatives at home, and therefore becoming more likely to send them to state-funded group homes.
While that outcome would be less fundamentally damaging to unions everywhere, health care workers and union leaders say it would essentially reverse Illinois’ efforts to keep disabled people at home instead of in group homes, a policy that has taken decades to build and refine.
“It took 30 years to get to this point,” said Flora Johnson, who takes care of her disabled son and is an SEIU leader. “With a union we can negotiate, we have a boss, we have training. Without a union, we wouldn’t have a voice.”