Government Misclassification of Workers

Date: August 05, 2015

In 2014 the Supreme Court struck down an Illinois enactment that sought to classify home care workers as “public employees.” The Court ruled, in Harris v. Quinn, that the statute was unconstitutional because it compelled home care workers into a union—forcing them to pay union dues. To a large extent, that decision hinged on the Court’s conclusion that it is inappropriate for a state to dub workers of an industry as “state employees,” simply for the purpose of advancing union interests.

The proper classification of workers was important because the Supreme Court’s 1977 decision in Abood v. Detroit Bd. of Education held that the state may compel public employees to unionize—whereas government is not permitted to compel private employees to unionize. Of course, Abood dealt with public school teachers who were unquestionably state employees. By contrast, the workers at issue in Harris were in no manner employees of the state in the traditional context of the employer-employee relationship. It was clear that they had only been deemed state employees for the purpose of invoking Abood. Thus, in Harris, the Supreme Court rightly clarified that states cannot label workers as public employees simply for the purpose of forcing them to pay union dues.

And, as we argued in a recent filing in the First Circuit Federal Court of Appeal, that same logic should likewise prohibit states from dubbing home care workers as “public employees” simply for the purpose of compelling their association with a union (regardless of whether the law goes so far as to compel payment of union dues). In that case, D’Agostino v. Patrick, the State of Massachusetts and the union both argue that this classification is permissible because home care workers accept public monies for their services; however, they are neither hired, nor fired, nor managed by the State. If that sort of logic were accepted, the state could force independent business owners in various industries to unionize if they accept any form of government benefits.

Indeed, if we accept Massachusetts’ argument here, the State could just as well force health care professionals, government contractors and even farmers to unionize. Accordingly, our brief emphasized that the First Amendment cannot be brushed aside. To the extent that the State relies on Abood, it must demonstrate that the workers it seeks to unionize are truly public employees.

But of course, Abood may be on its last leg as well. Indeed, the Supreme Court recently accepted a case, Friedrichs v. California Teachers Association, asking whether Abood should remain good law. For our part, we argued in Harris that the Court should overturn Abood. And we plan to renew those arguments in Friedrichs.

For more commentary on these issues, check out National Right to Work’s recent post: “Even When Big Labor Can’t Collect Forced Fees, It Guards Its Monopoly Bargaining Privileges Zealously.”  

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