In its 5-4 decision in Harris v. Quinn, the U.S. Supreme Court restricted the use of agency fee clauses in collective bargaining agreements covering state-paid home health care workers in Illinois. Under agency shop fee clauses, all employees represented by a union in collective bargaining are required to pay their “fair share” of union dues even if the employees are not union members. Since all employees represented by a union benefit from collectively bargained gains in wages and benefits, agency shop clauses provide that all employees should pay their fair share of the union’s expenses in collective bargaining and grievance handling.
The Court majority categorized the home health care workers as “partial public employees.” Illinois law defines the state as the public employer of home health care workers for purposes of collective bargaining. The State determines the home health care employees’ wages and benefits such as insurance. But the private consumers decide whether to hire and fire and supervise the home health care workers. The Court concluded that the agency shop clause violated the nonunion member employees’ First Amendment rights of association by requiring them to pay any amount of union dues where the union could not collectively bargain over conditions of employment controlled by private consumers. Significantly, though, the Court did not overrule a 37-year-old Supreme Court precedent holding that agency shop or “fair share” clauses do not violate public employees’ First Amendment rights. States may still authorize “full-fledged” public employers and unions to include agency shop/fair share clauses in collective bargaining agreements.
—Risa L. Lieberwitz is a Professor of Labor and Employment Law in the Cornell University School of Industrial and Labor Relations (ILR).