New Orleans    As terrible as the impact of the Supreme Court’s Harris v. Quinn decision is for unions and their capacity, the equally profound and perhaps more permanent implication may be in its attempt to create different sets of rights and entitlements for a permanent precariat in public sector employment.  The 5-4 majority decision written by Justice Samuel Alito denigrated home-based healthcare aides by referring to them as “partial public employees” creating a new, dangerous, and previously unknown labor classification in order to pretzel his decision in such a way that it could inflate the importance of some family member caregivers and camouflage a huge setback in the long organizing campaign to formalize what had been completely informal, precarious work.

The historic changes that organizing and unionization has established over 35 years of organizing home-based, informal workers are essential to understand no matter how the court has tried to disguise and devalue the importance of the contribution.  When we first began organizing these workers they were not just minimum wage workers, they were lucky to be even that.  Domestic workers only received minimum wage coverage under the Fair Labor Standards Act in 1978 and though now we recognize home healthcare workers as a critical piece in the health care mosaic and a cost saving, humane option to nursing homes, these jobs were just evolving in the 1970’s from their historic position as household servants.  Workers were seen as unskilled and classified as homemakers, chore workers, and generally, unskilled domestic labor.  Like domestics they had a series of clients, often traveling throughout the day until reimbursement was won for them to get pay for these hours, and received no benefits, holidays, vacations, health insurance, or even much respect.

Nonprofits first entered the field in some markets, and still are significant in New York, offering to match desperate families with workers able to meet the need.  For profit companies with names like McMaid, quickly followed with efforts to make the workers independent subcontractors and match workers with clients while receiving Medicare reimbursement dollars.  Moving from home to home to provide their special service, the workers were only marginally tied to the company paymasters since they provided no fixed worksite.  In the early days there were shapeups where workers showed up for their checks, until unions used these check days to sign-up the workers.  Requirements for regular training might create the only time a worker would meet others working for the same company.

When the United Labor Unions affiliated with the Service Employees in 1984, we had contracts covering this work with nonprofits in Boston and a bargaining order and no members but big dreams if we could get more legal and financial resources for our homecare local 880 in Chicago.  In Justice Alito’s classification of “partial public employees” he is ignoring years of litigation at every level of judicial review that established through the NLRA that these workers when handled by private companies were not independent contractors nor where they government employees.  As state reimbursement programs grew in states like Illinois, California, and elsewhere, entities like the Illinois Department of Rehabilitative Services (DORS) became significant employers and providers of home health workers, organizers were forced to establish the rights and entitlements of these workers at every level just as they did under the NLRA.   Some states with smaller programs, like Arkansas where Local 100 represents these workers, simply did the right thing and classified them as public employees, even while paying minimum wages.  Other states with more extensive health and benefit systems, like Illinois, balked at integrating tens of thousands of workers in benefit programs that were already in many cases overburdened and underfunded.  The compromise negotiated through constant bureaucratic and political struggle was to ease these workers, and later home daycare workers as well, into many of the rights and protections of public employees without accreting them fully into health and pension programs and instead concentrating on wages and some health coverage, all of which were won as critical milestones of substantial progress through unionization on the way to a future promised land.

What the Supreme Court is now trying to do through the backdoor of Harris v. Quinn is tear down the houses that our unions have built to hold safe and secure the employment of these workers.  Classifying them as “partial public employees,” and somehow not only different, but inherently substandard and diminished in comparison to firefighters and police for example opens the door to a definition of permanent precarity in a cruel paradox since these workers, just like fire and police, often are also among the few public servants with life and death of the public literally in their hands.   In the Hobby Lobby decision, Justice Alito tried to warn the religious and rightwing zealots that they should not take the religious exception into other attacks against minimum wages, discrimination, and other worker entitlements.  Sadly, nothing I have seen in this decision is a similar call for restraint in not expanding the diminishment of rights and entitlements for precariously employed, but public subsidized workers, way past the simple issue of paying servicing fees to a union, putting dark clouds in front of millions of workers in the future.