Illinois Union Issue Picked Up by High Court

WASHINGTON (CN) - The Supreme Court said it will decide whether in-home "personal assistants" who provide Medicaid-subsidized rehabilitation services must pay union costs even if they opt out of joining.

Supreme Court precedent already allows unions to collect fees from nonmembers, but personal assistants who work for Illinois agencies argue in the latest suit that they are actually employees of their patients, not the state.

A majority of the approximately 20,000 personal assistants who work for the Division of Rehabilitation Services had voted to designate SEIU Healthcare Illinois & Indiana as their representative in 2003. Six years later, a majority of the 4,500 personal assistants working for the Division of Developmental Disabilities rejected such representation.

Members of both groups are plaintiffs in the suit, even though disabilities assistants do not currently pay for any representation.

They claimed in a class action that requiring all assistants to pay "fair share" fees violates the First Amendment by compelling their association with, and speech through, the union.

A three-judge panel of the 7th Circuit disagreed in 2011, affirming dismissal of the case for failure to state a claim.

Because Illinois establishes assistants' job duties, sets and pays their salaries and work hours, and pays for training, it is, at least, a joint employer for the purposes of collective bargaining, according to that ruling.

Illinois has a compelling interest in labor peace, and union monopoly over employees is desirable, the court found.

The opinion was a narrow one, however, with Judge Daniel Manion noting that the panel did not consider whether Supreme Court precedent "would still control if the personal assistants were properly labeled independent contractors rather than employees. And we certainly do not consider whether and how a state might force union representation for other health care providers who are not state employees, as the plaintiffs fear."

Since the disabilities assistants do not pay union costs, the court also barred claims from that group.

"The plaintiffs' claims are contingent on events that may never occur and thus are not ripe," Manion wrote, affirming dismissal for lack of jurisdiction.

"The courts cannot judge a hypothetical future violation in this case any more than they can judge the validity of a not-yet-enacted law, no matter how likely its passage," he added. "To do so would be to render an advisory opinion, which is precisely what the doctrine of ripeness helps to prevent."

If the disabilities assistants ever elect union representation, they can refile.

In granting the assistants, led by Pamela Harris, a writ of certiorari on Tuesday, the high court followed its custom of not offer any statement.

It noted simply that The Center for Constitutional Jurisprudence could file a friend-of-the-court brief.

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