By Bryan P. Sears, The Daily Record
Thousands of independent, state-approved home- and childcare providers in Maryland could have the ability to opt out of union dues under a ruling issued Tuesday by the Supreme Court.
In a 5-4 decision, the majority said health care workers in Illinois who do not wish to be affiliated with a union cannot be forced to join one and that the collection of related union dues was a violation of the First Amendment.
Maryland, like Illinois, is in the small minority of states that allow home care workers to join unions. So the ruling could, at the very least, affect 4,600 independent caregivers who were initially covered by one of the first executive orders issued in 2007 by Gov. Martin O’Malley.
Codified into law four years later by the General Assembly, the law gives the American Federation of State, County and Municipal Employees the exclusive right to represent those independent workers.
“There are many caregivers who choose not to belong to a union and this decision offers that ability,” said Elizabeth Weglein, chief executive officer of the Towson-based Elizabeth Cooney Agency.
Weglein, whose company is not directly affected by the decision, was involved in discussions that led to the implementation of O’Malley’s 2007 executive order. She also chairs the Maryland Caregivers Support Coordinating Council.
The ruling may have even more impact if it is extended to certified nursing assistants, who number 100,000 in Maryland, Weglein said.
A January 2013 report by the state Department of Health and Mental Hygiene estimated 1,434 independent providers — about 37 percent of all state-approved independent contractors — participated in the union and were paying monthly dues of $25.
Both the in-home health care and child care givers are paid through the state’s Medicaid program. The contractors are not state employees and are not eligible for state benefits such as health insurance and pensions. Many caregivers are friends and relatives of the individuals being served, Weglein said.
Precedent survives challenge
The high court, in its ruling, stopped far short of overturning ‘Fair Share’ laws that are on the books in Maryland and 25 other states. The laws provide that public employees who opt out of a union can be required to pay a fee that corresponds to the cost of collective bargaining, adjusting grievances and administering contracts.
The Supreme Court approved such laws in a 1977 case, Abood v. Detroit Board of Education. Opponents had hoped the court would use Monday’s decision to overturn Abood.
The majority of the court opted to draw a line between what it called full-fledged public employees and home health care workers who essentially have private work agreements but are required by Illinois law to pay dues to a specific union.
“The court’s decision didn’t hand the anti-worker extremists the victory over hard-working employees that they were looking for,” said Patrick Moran, director of AFSCME Local 3.
Even so, Moran said, it will likely mean changes for the in-home health care workers as well as about 5,400 child caregivers in Maryland.
State officials said they were still working to understand the exact effect on the state.
O’Malley, in a statement released shortly after the decision, said he was “disappointed with the outcome.”
“Maryland has derived enormous benefit from our homecare system, which includes collective bargaining,” O’Malley said in his statement. “Our system enables the state to accomplish important goals — like ensuring an adequate and well-trained homecare workforce — and exclusive representation and fair-share fees play an important role in a fair and effective collective bargaining system.”
O’Malley said state officials were in the early stages of reviewing exactly how the decision would affect Maryland.
“Our system has worked well for home health workers, patients, and taxpayers — so we will try to keep it as much intact as is possible,” O’Malley said.
Supporters, including O’Malley, claim the dues are appropriate because even those who do not wish to join a union benefit from collective bargaining agreements.
But opponents claim the laws force individuals to join unions against their will and that the dues are used to bolster the political strength of labor groups.
In the end, the majority of the court said Illinois’ law went too far.
“If we accepted Illinois’ argument, we would approve an unprecedented violation of the bedrock principle that, in perhaps the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support,” Justice Samuel A. Alito Jr. wrote for the majority.