Turning Private Workers Into 'Public Employees'

By Karen R. Harned

In its usual fashion, the Supreme Court is waiting until the very end of its term to announce its biggest decisions. We’re waiting on a few cases here at the National Federation of Independent Business, but perhaps none is as important as Harris v. Quinn. The case asks whether the State of Illinois went too far in forcing home-care workers whose patients receive public subsidies to pay public-employee union dues.

In 2003, then-governor Rod Blagojevich issued an executive order declaring persons who engage in home health care, including those caring for loved ones, to be "public employees" for the purposes of state labor law. When the Service Employees International Union got a majority of these workers to sign cards supporting unionization, the governor agreed with the union that all of the workers -- including those who had refused to support the union -- should pay union dues. Every year, home-care "employees" will be required to pay the SEIU an average of $300 apiece, meaning a total of $3.6 million.

Amazingly, similar schemes to increase union rolls have been proposed in 26 other states. And the Supreme Court is being asked to consider the issue of forced unionism not just for home-care workers, but for public employees across the board. This means that the Harris decision could have implications not only in Illinois but throughout the nation.

On the narrower question of home-care workers, a victory for the unions will mean that entrepreneurs who run their own businesses will be treated as public employees. Over 20,000 additional Illinois residents will be swept into the regime simply because they are providing care for elderly parents, special-needs children, or other home-bound individuals who receive government subsidies. Conversely, a win for entrepreneurial rights will represent a major setback for unions seeking to bolster their ranks through coercive legislative actions.

As we argued to the Supreme Court, it is patently absurd to treat home-care workers as public employees. These individuals usually work for independent companies -- recognized by state and federal law as being separate and distinct legal entities. (Even Blagojevich's executive order made these workers public employees "solely for the purposes of coverage under the Illinois Labor Relations Act," meaning that they don't receive pensions or other public-employee benefits.) Many home-care workers choose to go into business for themselves, not for anyone else, and they are proud of being entrepreneurs doing work that provides both for their families and for others'.

Like any business, home-care workers negotiate their own rates and choose to work their own hours while seeking to be accommodating and responsive to customer needs and preferences. They do not report to anyone in government, are not reviewed by anyone in government, and are not supervised by government except to the extent that government regulates the industry. Indeed, home-care workers are not even paid by the government directly; they are paid by their customers, who can choose to go through other vendors if the worker does a poor job.

The only argument for treating health-care providers as public employees is premised on the fact that these workers accept the benefit of public subsidies -- which are made available to those in need of care without means of paying. But, of course, if acceptance of public subsidies converts private workers into public employees, then health-care professionals and workers in many other industries are public employees too. That’s a radical proposition. Taken far enough, it could mean that we are all mere instruments of the state.

Karen R. Harned is executive director of the National Federation of Independent Business's Small Business Legal Center.

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