Harris v. Quinn Part 3: The Problem of Creating Employers for Informal Workers

vendors union meeting in Bangalore

vendors union meeting in Bangalore

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.

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Harris v. Quinn Part 2: Creating a Permanent Precariat in Public Employment

Harris v. Quinn Press Conference at Supreme CourtNew 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.

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