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The Supreme Court Agency Fee Decision:

 Avoiding the Bullet

 [At Least for Present]

Yesterday’s 5-4 decision by the United States Supreme Court in Harris v. Quinn, while invalidating the agency fee for the particular employees involved, did not invalidate the agency fee for most public employees, including administrators and teachers in New York State.

The court found that, because the class of employees in question, “personal assistants” [“PA”], who provide home care assistance in Illinois under the federal Medicaid program, are not full-fledged public employees, the imposition of agency fees against them was unconstitutional.  Thus the decision is limited to partial or quasi-public sector employees such as the litigants involved in this particular case. These employees, are hired, fired, evaluated and disciplined by the individual Medicaid recipient, or and not the public employer.  Furthermore, State law specifically provides that the customer is the employer of the PA and the State pays the salary of the PA and sets certain minimum qualification.  Under those circumstances, the Court found the employees not to be full-fledged public employees and declared that, as such they are exempt from agency fee

The State of Illinois passed legislation which declared personal assistants to be “public employees” of the State of Illinois, but “solely for the purposes of coverage” under their equivalent of the Taylor Law.  The law also stated personal assistants are not state employees for any other purpose.

Following a vote, the SEIU was declared the representative of the personal assistant for purposes of collective bargaining.  The union negotiated a contract with the State which contained an agency fee provision, which was the subject of the litigation.

Agency fee is the amount non-members are assessed because unions have to negotiate contracts on behalf of non-members a well as members, and unions must also represent non-members in grievances.  The agency fee represents the cost of that representation.  Certain expenses are not chargeable to agency fee payers, such as the costs of union organizing campaigns and certain political and ideological expenses.  However, since unions cannot spend money on direct political expenses, hence the needs for PAC funds, the amount of the agency fee is close to the cost of dues.  The United States Supreme Court has repeatedly held that agency fee is legal.

In the instant case, the plaintiffs challenged the agency fee, claiming it violated their First Amendment rights.  In upholding the plaintiffs’ claim, technically all the majority opinion did was refuse to extend the agency fee cases to this particular class of employees.   In essence, the Court reasoned the relationship between the PA and the customer is more akin to that of a private sector employee and employer rather than a public sector employee and government, with the customer being the employer.  Therefore, the union had no legitimate claim to an agency fee as they weren’t negotiating with the “real” employer.  Because the court did not alter the rule of law regarding agency fee for true public employees, i.e., actual employees of school districts and other governmental entities, this decision does not change the general legality of agency fee.

However, although the majority opinion did not overrule the longstanding precedents approving agency fees, the majority nonetheless went out of their way to attack the precedents and talk about how prior courts misunderstood the law. The court also was particularly hostile to public sector unions.  Therefore, the stage has been set for more expansive litigation that could affect our units.

This case was funded by the National Right To Work Committee, a right wing group devoted to destroying unions.   The decision in Harris v. Quinn represents an invitation to special interests to initiate more litigation aimed at undermining, if not destroying, the collective bargaining rights of public sector employees.

The multi-pronged attack on public employees was discussed in recent communications to members and will not be reiterated in this eblast.   Suffice it to say, the big money groups backing charter schools, elimination of tenure, tax caps, and legislative or judicial curtailment of public sector collective bargaining rights are mightily pleased and planning the next attack on your livelihood.

CAS encourages you to contribute to CAS PAC [490 Wheeler Road, Suite 280, Hauppauge, NY  11788] to help maintain our friends in the legislature, and to be sure to vote in November, and pay careful attention to whom you support.  We don’t have the big money of special interests, but working together we will preserve the gains school administrators have made over the last 30 years as a result of union collective bargaining, lobbying and litigation.



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