1 (Slip Opinion)
OCTOBER TERM, 2013
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES
Syllabus
HARRIS ET AL. v. QUINN, GOVERNOR OF ILLINOIS, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 11–681. Argued January 21, 2014—Decided June 30, 2014
Illinois’ Home Services Program (Rehabilitation Program) allows Medi- caid recipients who would normally need institutional care to hire a “personal assistant” (PA) to provide homecare services. Under State law, the homecare recipients (designated “customers”) and the State both play some role in the employment relationship with the PAs. Customers control most aspects of the employment relationship, in- cluding the hiring, firing, training, supervising, and disciplining of PAs; they also define the PA’s duties by proposing a “Service Plan.” Other than compensating PAs, the State’s involvement in employ- ment matters is minimal. Its employer status was created by execu- tive order, and later codified by the legislature, solely to permit PAs to join a labor union and engage in collective bargaining under Illi- nois’ Public Labor Relations Act (PLRA).
Pursuant to this scheme, respondent SEIU Healthcare Illinois & Indiana (SEIU–HII) was designated the exclusive union representa- tive for Rehabilitation Program employees. The union entered into collective-bargaining agreements with the State that contained an agency-fee provision, which requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process. A group of Rehabilitation Program PAs brought a class ac- tion against SEIU–HII and other respondents in Federal District Court, claiming that the PLRA violated the First Amendment insofar as it authorized the agency-fee provision. The District Court dis- missed their claims, and the Seventh Circuit affirmed in relevant part, concluding that the PAs were state employees within the mean- ing of Abood v. Detroit Bd. of Ed., 431 U. S. 209.
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Held: The First Amendment prohibits the collection of an agency fee from Rehabilitation Program PAs who do not want to join or support the union. Pp. 8–40.
(a) In upholding the Illinois law’s constitutionality, the Seventh Circuit relied on Abood, which, in turn, relied on Railway Employes v. Hanson, 351 U. S. 225, and Machinists v. Street, 367 U. S. 740. Unlike Abood, those cases involved private-sector collective- bargaining agreements. The Abood Court treated the First Amend- ment issue as largely settled by Hanson and Street and understood those cases to have upheld agency fees based on the desirability of “labor peace” and the problem of “ ‘free riders[hip].’ ” 431 U. S., 220– 222, 224. However, “preventing nonmembers from free-riding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections,” Knox v. Service Employees, 567 U. S. ___, ___, and in this respect, Abood is “something of an anomaly,” 567 U. S., at ___.
The Abood Court’s analysis is questionable on several grounds. The First Amendment analysis in Hanson was thin, and Street was not a constitutional decision. And the Court fundamentally misun- derstood Hanson’s narrow holding, which upheld the authorization, not imposition, of an agency fee. The Abood Court also failed to ap- preciate the distinction between core union speech in the public sec- tor and core union speech in the private sector, as well as the concep- tual difficulty in public-sector cases of distinguishing union expenditures for collective bargaining from those designed for politi- cal purposes. Nor does the Abood Court seem to have anticipated the administrative problems that would result in attempting to classify union expenditures as either chargeable or nonchargeable, see, e.g., Lehnert v. Ferris Faculty Assn., 500 U. S. 507, or the practical prob- lems that would arise from the heavy burden facing objecting non- members wishing to challenge the union’s actions. Finally, the Abood Court’s critical “labor peace” analysis rests on the unsupported em- pirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers. Pp. 8–20.
(b) Because of Abood’s questionable foundations, and because Illi- nois’ PAs are quite different from full-fledged public employees, this Court refuses to extend Abood to the situation here. Pp. 20–29.
(1) PAs are much different from public employees. Unlike full- fledged public employees, PAs are almost entirely answerable to the customers and not to the State, do not enjoy most of the rights and benefits that inure to state employees, and are not indemnified by the State for claims against them arising from actions taken during the course of their employment. Even the scope of collective bargaining
3 Cite as: 573 U. S. ____ (2014)
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on their behalf is sharply limited. Pp. 20–25.
(2) Abood’s rationale is based on the assumption that the union possesses the full scope of powers and duties generally available un- der American labor law. Even the best argument for Abood’s anoma- lous approach is a poor fit here. What justifies the agency fee in the Abood context is the fact that the State compels the union to promote and protect the interests of nonmembers in “negotiating and admin- istering a collective-bargaining agreement and representing the in- terests of employees in settling disputes and processing grievances.” Lehnert, supra, at 556. That rationale has little application here, where Illinois law requires that all PAs receive the same rate of pay and the union has no authority with respect to a PA’s grievances against a customer. Pp. 25–27.
(3) Extending Abood’s boundaries to encompass partial public employees would invite problems. State regulations and benefits af- fecting such employees exist along a continuum, and it is unclear at what point, short of full-fledged public employment, Abood should apply. Under respondents’ view, a host of workers who currently re- ceive payments from a government entity for some sort of service would become candidates for inclusion within Abood’s reach, and it would be hard to see where to draw the line. Pp. 27–29.
(c) Because Abood does not control here, generally applicable First Amendment standards apply. Thus, the agency-fee provision here must serve a “ ‘compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational free- doms.’ ” Knox, supra, at ___. None of the interests that respondents contend are furthered by the agency-fee provision is sufficient. Pp. 29–34.
(1) Their claim that the agency-fee provision promotes “labor peace” misses the point. Petitioners do not contend that they have a First Amendment right to form a rival union or that SEIU–HII has no authority to serve as the exclusive bargaining representative. This, along with examples from some federal agencies and many state laws, demonstrates that a union’s status as exclusive bargain- ing agent and the right to collect an agency fee from nonmembers are not inextricably linked. Features of the Illinois scheme—e.g., PAs do not work together in a common state facility and the union’s role is very restricted—further undermine the “labor peace” argument. Pp. 31–32.
(2) Respondents also argue that the agency-fee provision pro- motes the welfare of PAs, thereby contributing to the Rehabilitation Program’s success. Even assuming that SEIU–HII has been an effec- tive advocate, the agency-fee provision cannot be sustained unless the union could not adequately advocate without the receipt of non-
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member agency fees. No such showing has been made. Pp. 32–34.
(d) Respondents’ additional arguments for sustaining the Illinois scheme are unconvincing. First, they urge the application of a bal- ancing test derived from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563. This Court has never viewed Abood and its progeny as based on Pickering balancing. And even assuming that Pickering applies, that case’s balancing test clearly tips in favor of the objecting employees’ First Amendment in- terests. Second, respondents err in contending that a refusal to ex- tend Abood here will call into question this Court’s decisions in Keller v. State Bar of Cal., 496 U. S. 1, and Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, for those decisions fit comforta- bly within the framework applied here. Pp. 34–40. 656 F. 3d 692, reversed in part, affirmed in part, and remanded.
A
LITO
, J., delivered the opinion of the Court, in which R
OBERTS
, C. J., and S
CALIA
, K
ENNEDY
, and T
HOMAS
, JJ., joined. K
AGAN
, J., filed a dis- senting opinion, in which G
INSBURG
, B
REYER
, and S
OTOMAYOR
, JJ., joined.
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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________
No. 11–681
_________________
PAMELA HARRIS, ET AL, PETITIONERS v. PAT QUINN, GOVERNOR OF ILLINOIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[June 30, 2014] JUSTICE ALITO delivered the opinion of the Court. This case presents the question whether the First Amendment permits a State to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support. We hold that it does not, and we therefore reverse the judg ment of the Court of Appeals.
I A Millions of Americans, due to age, illness, or injury, are unable to live in their own homes without assistance and are unable to afford the expense of in-home care. In order to prevent these individuals from having to enter a nurs ing home or other facility, the federal Medicaid program funds state-run programs that provide in-home services to individuals whose conditions would otherwise require institutionalization. See 42 U. S. C. §1396n(c)(1). A State that adopts such a program receives federal funds to compensate persons who attend to the daily needs of individuals needing in-home care. Ibid.; see also 42 CFR §§440.180, 441.300–441.310 (2013). Almost every State has established such a program. See Dept. of Health and
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Human Services, Understanding Medicaid Home and Community Services: A Primer (2010).
One of those States is Illinois, which has created the Illinois Department of Human Services Home Services Program, known colloquially as the state “Rehabilitation Program.” Ill. Comp. Stat., ch. 20, §2405/3(f) (West 2012); 89 Ill. Admin. Code §676.10 (2007). “[D]esigned to prevent the unnecessary institutionalization of individuals who may instead be satisfactorily maintained at home at a lesser cost to the State,” §676.10(a), the Rehabilitation Program allows participants to hire a “personal assistant” who provides homecare services tailored to the individual’s needs. Many of these personal assistants are relatives of the person receiving care, and some of them provide care in their own homes. See App. 16–18.
Illinois law establishes an employer-employee relation ship between the person receiving the care and the person providing it. The law states explicitly that the person receiving home care—the “customer”—“shall be the em ployer of the [personal assistant].” 89 Ill. Admin. Code §676.30(b) (emphasis added). A “personal assistant” is defined as “an individual employed by the customer to provide . . . varied services that have been approved by the customer’s physician,” §676.30(p) (emphasis added), and the law makes clear that Illinois “shall not have control or input in the employment relationship between the cus tomer and the personal assistants.” §676.10(c).
Other provisions of the law emphasize the customer’s employer status. The customer “is responsible for control ling all aspects of the employment relationship between the customer and the [personal assistant (or PA)], includ ing, without limitation, locating and hiring the PA, train ing the PA, directing, evaluating and otherwise supervis ing the work performed by the personal assistant, imposing . . . disciplinary action against the PA, and ter minating the employment relationship between the cus
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tomer and the PA.” §676.30(b).1 In general, the customer “has complete discretion in which Personal Assistant he/she wishes to hire.” §684.20(b).
A customer also controls the contents of the document, the Service Plan, that lists the services that the customer will receive. §684.10(a). No Service Plan may take effect without the approval of both the customer and the cus tomer’s physician. See §684.10, 684.40, 684.50, 684.75. Service Plans are highly individualized. The Illinois State Labor Relations Board noted in 1985 that “[t]here is no typical employment arrangement here, public or other wise; rather, there simply exists an arrangement whereby the state of Illinois pays individuals . . . to work under the direction and control of private third parties.” Illinois Dept. of Central Management Serv., No. S–RC–115, 2 PERI ¶2007, p. VIII–30, (1985), superseded, 2003 Ill. Laws p. 1929.
While customers exercise predominant control over their employment relationship with personal assistants, the State, subsidized by the federal Medicaid program, pays the personal assistants’ salaries. The amount paid varies depending on the services provided, but as a general mat ter, it “corresponds to the amount the State would expect to pay for the nursing care component of institutionaliza tion if the individual chose institutionalization.” 89 Ill. Admin. Code §679.50(a). ——————
1Although this regulation states clearly that a customer has complete discretion with respect to hiring and firing a personal assistant, the dissent contends that the State also has the authority to end the employment of a personal assistant whose performance is not satisfac tory. Nothing in the regulations supports this view. Under 89 Ill. Admin. Code §677.40(d), the State may stop paying a personal assistant if it is found that the assistant does not meet “the standards estab lished by DHS as found at 89 Ill. Adm. Code 686.” These standards are the basic hiring requirements set out in §686.10, see n. 2, infra. Provid ing adequate performance after hiring is nowhere mentioned in §686.10.
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Other than providing compensation, the State’s role is comparatively small. The State sets some basic threshold qualifications for employment. See §§686.10(h)(1)–(10).2 (For example, a personal assistant must have a Social Security number, must possess basic communication skills, and must complete an employment agreement with the customer. §§686.10, 686.20, 686.40.) The State man dates an annual performance review by the customer, helps the customer conduct that review, and mediates disagreements between customers and their personal assistants. §686.30. The State suggests certain duties that personal assistants should assume, such as perform ing “household tasks,” “shopping,” providing “personal care,” performing “incidental health care tasks,” and “monitoring to ensure the health and safety of the cus tomer.” §686.20. In addition, a state employee must “identify the appropriate level of service provider” “based on the customer’s approval of the initial Service Plan,” §684.20(a) (emphasis added), and must sign each customer’s Service Plan. §684.10.
B Section 6 of the Illinois Public Labor Relations Act (PLRA) authorizes state employees to join labor unions and to bargain collectively on the terms and conditions of
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2It is true, as the dissent notes, post, at 4, that a personal assistant must provide two written or oral references, see §686.10(c), but judging the adequacy of these references is the sole prerogative of the customer. See §676.30(b). And while the regulations say that an applicant must have either previous experience or training, see §686.10(f), they also provide that a customer has complete discretion to judge the adequacy of training and prior experience. See §684.20(b) (the customer has complete discretion with respect to hiring and training a personal assistant). See also §686.10(b) (the customer may hire a minor—even under some circumstances, a person as young as 14); §686.10(f) (the customer may hire a personal assistant who was never previously employed so long as the assistant has adequate training); §684.20(b) (criminal record check not required).
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employment. Ill. Comp. Stat., ch. 5, §315/6(a). This law applies to “[e]mployees of the State and any political sub division of the State,” subject to certain exceptions, and it provides for a union to be recognized if it is “designated by the [Public Labor Relations] Board as the representative of the majority of public employees in an appropriate unit . . . .” §§315/6(a), (c).
The PLRA contains an agency-fee provision, i.e., a provi sion under which members of a bargaining unit who do not wish to join the union are nevertheless required to pay a fee to the union. See Workers v. Mobil Oil Corp., 426 U. S. 407, 409, n. 1 (1976). Labeled a “fair share” provision, this section of the PLRA provides: “When a collective bargain ing agreement is entered into with an exclusive repre sentative, it may include in the agreement a provision requiring employees covered by the agreement who are not members of the organization to pay their proportionate share of the costs of the collective-bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment.” §315/6(e). This payment is “deducted by the employer from the earn ings of the nonmember employees and paid to the em- ployee organization.” Ibid.
In the 1980’s, the Service Employees International Union (SEIU) petitioned the Illinois Labor Relations Board for permission to represent personal assistants employed by customers in the Rehabilitation Program, but the board rebuffed this effort. Illinois Dept. of Central Management Servs., supra, at VIII–30. The board con cluded that “it is clear . . . that [Illinois] does not exercise the type of control over the petitioned-for employees nec essary to be considered, in the collective bargaining con text envisioned by the [PLRA], their ‘employer’ or, at least, their sole employer.” Ibid.
In March 2003, however, Illinois’ newly elected Gover nor, Rod Blagojevich, circumvented this decision by issu
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ing Executive Order 2003–08. See App. to Pet. for Cert. 45a–47a. The order noted the Illinois Labor Relations Board decision but nevertheless called for state recogni tion of a union as the personal assistants’ exclusive repre sentative for the purpose of collective bargaining with the State. This was necessary, Gov. Blagojevich declared, so that the State could “receive feedback from the personal assistants in order to effectively and efficiently deliver home services.” Id., at 46a. Without such representation, the Governor proclaimed, personal assistants “cannot effectively voice their concerns about the organization of the Home Services program, their role in the program, or the terms and conditions of their employment under the Program.” Ibid.
Several months later, the Illinois Legislature codified that executive order by amending the PLRA. Pub. Act no. 93–204, §5, 2003 Ill. Laws p. 1930. While acknowledging “the right of the persons receiving services . . . to hire and fire personal assistants or supervise them,” the Act de clared personal assistants to be “public employees” of the State of Illinois—but “[s]olely for the purposes of coverage under the Illinois Public Labor Relations Act.” Ill. Comp. Stat., ch. 20, §2405/3(f). The statute emphasized that personal assistants are not state employees for any other purpose, “including but not limited to, purposes of vicari ous liability in tort and purposes of statutory retirement or health insurance benefits.” Ibid.
Following a vote, SEIU Healthcare Illinois & Indiana (SEIU–HII) was designated as the personal assistants’ exclusive representative for purposes of collective bargain ing. See App. 23. The union and the State subsequently entered into collective-bargaining agreements that require all personal assistants who are not union members to pay a “fair share” of the union dues. Id., at 24–25. These payments are deducted directly from the personal assis tants’ Medicaid payments. Ibid. The record in this case
