New Orleans Looking at the history of home-based work both in healthcare and daycare and its roots in domestic work going back to USA colonial times and branching directly out from plantation life at the end of slavery, it really goes without saying that the Court’s decision and creation of a new classification of “partial public employment,” was made all the easier for the Justices because these workers were not only lower income but almost universally female and in the vast majority African-American, Latino, or new immigrant from scores of countries. Informal, temporary, casual, contingent, or precarious work, no matter how described, is often so and always hits many, if not all, of those categories.
Less obvious perhaps is that one of the unexamined impacts of the U.S. Supreme Court’s narrow 5-4 decision in Harris v. Quinn is the persistent challenge in organizing the precariat or informal workers anywhere around the globe: how do you create an employer? And, yes, I said an “employer,” not employment. Mary Kay Henry, president of the Service Employees International Union, touched on this problem in a glancing fashion in one of her first statements reacting to the decision when asked about next steps in Illinois, she said that they would discuss alternative “models” for how to represent these workers in the future. Without saying so explicitly, Henry was undoubtedly already moving forward on a strategy to see if there might be the political will and weight in Illinois to trump Justice Samuel Alito’s “partial public employee” classification by changing the “model” in such a way that these workers were not caught between fish and fowl, but were either full public employees or full private employees.
In Illinois the model was straight forwardly political, first moving from one governor to another and advancing the rights and entitlements of homecare workers from none at all to check-off to meet-and-confer to a representation election to a formal collective bargaining agreement. The political work could not be uprooted with a change of governor’s because the union methodically worked the legislature regularly and in giant lobby days to increase appropriations and reimbursements to raise wages for DORS workers as well as reimbursement rates for private companies also represented by Local 880 and later Healthcare Illinois. Changing governors could not end bargaining rights simply based on executive orders as was the case in Michigan and other states, because the legislature also had overwhelmingly endorsed the collective bargaining right of these workers. There were Illinois legislators who literally loved these ladies and over the years had gotten to know them and care about their promises thanks to the union’s constant efforts. It was heartwarming and consistent with the local union’s culture to see long-time leader, Flora Johnson, whom I have known for years, quoted in papers all over the country speaking of her long journey from less than $6 per hour to over $13 due to her fight with the union. In Illinois the model was to make the state government the employer, and it was embraced by all parties until Harris v. Quinn.
California offered the other major model which involved creating a separate authority which would act as the employer, and would operate on a county-by-county basis as almost a joint partnership between the state and the county leveraging their participation with the federal reimbursement system. Perhaps the authority model is safer in spite of Harris v. Quinn, but it would take better gamblers than I am, and lawyers that I am not, to know for sure. The only sure bet is that the Right to Work Foundation is likely looking for clients all over Los Angeles and the Bay Area already to challenge agency fees there on the grounds of this decision. The New York model remained largely dominated by nonprofits, and since they were organized first under the NLRB, that system classifies home care workers as private employees. Home daycare workers in New Jersey and New York State though were organized more along the lines of the Illinois model, and certainly we ran the bulk of both of those organizing efforts, so lawyers are probably billing hours to CWA and AFT now.
We have the same problem with the local unions that ACORN International has organized in the Indian cities of Bengaluru and Chennai that now have over 10,000 members. Street vendors, food vendors, domestic workers, mahdi or dockworkers, all operate informally without employers though they have huge employment issues which only unions can address. What I have referred to elsewhere as the Maharashtra or Mumbai Model duplicated in many Indian cities and states sets employment and social security standards for various classifications of informal workers from auto rickshaw drivers to domestic workers. Enforcement is predictably minimal to nonexistent, but that’s also why unions, once they win registration procedures for such workers, as we have now in the state of Karnataka and already exist in Tamil Nadu and other states, can enroll and represent such workers as our members directly.
In the neoliberal informalization of labor throughout the globe the employer objective in the race to the bottom is to evade any regulations and any responsibility for the workers who ultimately do the work. This problem previously caged in the public sector as subcontracting and privatization, has now leapfrogged into USA direct public employment standards through Harris v. Quinn. At the heart of the fight, ahead of even union security, will have to be the fight to create employment standards and clear accountability of an “employer” by any name necessary in order to secure for these precarious workers guaranteed and adequate terms and conditions of employment.