In Harris, Supreme Court relegates home work to unprotected class: women

It's not merely that the Supreme Court's decision in Harris v. Quinn is bad for American labor unions and the low-wage workforce these unions increasingly represent. What's just as troubling is the outdated, unrealistic and arguably sexist concept of work that underlies the ruling.

The legal question in Harris was whether an Illinois public-sector union could extract service fees from home-based personal care attendants (PCAs) serving disabled clients. The PCAs in question — paid by public Medicaid funds but employed by individuals in the home — rejected union membership while benefiting from the higher wages and improved working conditions negotiated on their behalf. These employees were not required to pay into the union generally, but they did have to pay a “fair-share” contribution to help cover the union's collective-bargaining expenses.

In a statement issued by the National Right to Work Legal Defense Foundation, counsel for lead plaintiff Pam Harris and a few other women caregivers opposed to the union, "This scheme, which forced parents and other relatives taking care of persons with disabilities into union political association was a slap in the face of fundamental American principles we hold dear.”

The Supreme Court decided in Harris’s favor early Monday. In a 5-4 opinion, split along partisan lines and authored by Justice Samuel Alito, the Supreme Court ruled that, because PCAs and their ilk are “partial” or quasi-public employees, they should not, as a constitutional matter, be forced to contribute to the unions representing them. The decision fiercely criticized but did not quite overturn Abood v. Detroit Board of Education, a 1977 case holding that public employees can be compelled to pay fair-share fees, so as to reduce the problem of “free riders.”

Beyond its express holding, the Harris case hinges on a specific, orthodox understanding of what it means to be a public employee: Defined by Justice Alito as a teacher or secretary or firefighter, but not a home-based caregiver employed in part by her disabled or elderly client. Since the time of Abood, however, the predominantly female workforce paid through Medicaid and other federal funding streams to serve low-income, vulnerable populations — disabled adults, the elderly and young children — have migrated from institutional facilities to individual apartments and houses. Home-based care became a critical part of our public infrastructure, but the pay and working conditions of personal care attendants and child-care providers did not keep pace.

According to Craig Becker, counsel for the AFL-CIO union federation, Harris “flies in the face of economic reality. Employers are, more and more, dividing up who controls what, who sets wages who supervises. Yet the Court says there's a category of ‘true’ public employees,” he said. “Historically, women have not been the kind of ‘full employee’ that the Court imagines still exists. They often work part-time, often work in roles where the lines between employment and something else [are] blurry.”

Over the past two decades, unions like the Service Employees International Union (a respondent in the Harris case) and the Communications Workers of America have sought to negotiate with states and localities on these workers' behalf, in an effort to raise wages, improve benefits and mitigate the isolation of the domestic sphere. In over a dozen states, unions have lobbied for executive orders and legislation deeming home care workers public employees for purposes of collective bargaining. Through negotiated contracts, the Illinois plaintiffs before the Court saw their hourly wages rise from $7 to almost $13, and obtained health insurance and paid time off, to boot. The median wage of the nation’s 875,000 home care workers is $10 per hour, or $20,000 per year.

The difficulty of organizing this sector cannot be overstated: Home care workers, like nannies and other domestic workers, labor in isolation without coworkers or a central office or factory floor. Most of them are female, people of color and immigrants. As a former SEIU home care organizer said (on condition of anonymity), "It's such a dispersed and isolated workforce. There’s no worksite. We have to find these people in their homes and go visit them in their homes. It can take a full day of driving to visit two workers." 

This atomized structure has, in some cases, produced a situation where “it’s common to meet public sector employees who don’t know their union,” said Stephanie Luce, associate professor of labor studies at the City University of New York. “Our labor law’s set up in a way to let unions do all the work but not have a relationship to the employees,” particularly those who labor in the home.

It appears that the home-based, traditionally female domestic workforce is just the latest statistic in the country’s move toward a “right to work” model, a euphemism for the legal structure permitting union-represented workers to avoid union membership and dues. Home care workers have eked out union contracts in Nevada, but none in any other right-to-work states.

In the wake of the Harris case, Luce believes that, “Unions will need to think about creative solutions to counter these attacks. … I think they would do better to look for strategies that go beyond service provision — finding ways to be more integral to workers’ daily lives, beyond the paycheck alone.”