Two Options for Illinois After Harris v. Quinn

Although the pundits were right that Justice Alito penned the majority decision for Harris v. Quinn, the assumption (that I shared) about a broad opinion was incorrect.  Yes, the opinion attacks Abood, but in a passive-aggressive way: it criticizes the decision for a whole section while ultimately only failing to extend it to "partial" public employees.  My guess is that Abood is largely safe but may be chiseled away at over time.  Of course, Abood is not safe as to the home health care workers, since the Court ruled that the First Amendment prevented the state from agreeing to any form of mandatory dues as to those workers.

The home health care workers will presumably remain unionized; the only change is that workers like the petitioners in this case will choose not to pay any dues.  How many more will join them is an open question.  But the free-rider problem may make it difficult for the union to maintain its level of services to all the employees in the unit.  If Illinois wants to provide an economic model for unionization that is something akin to the now-unconstitutonal system, here are two possibilities:

1. Make all home health care workers into full Illinois state employees.  Despite all the hostility towards Abood, the Court's decision rests solely on the home health care workers status as partial state employees.  And from the outside, it is a strange distinction: the state looked like it was trying to have its cake and eat it too.  Now that the Court is forcing the state to choose, it could choose to make all home health care workers into state employees.  What would change?  The state would have to take away some of the control that the customer currently has and place that with the state.  This move has independent benefits: since the government is paying for the services, the government shoud arguably exercise more control and oversight over those services.  People like the petitioners in this case--people who are paid to care for their own loved ones--will likely not like this move.  But they are in a strange position to begin with: Pamela Harris, for example, is employed by her son, for whom I would imagine she is at least one of his guardians.  If the putative employer--the care-requiring customer--is often not in a position to exercise oversight of the employee, the state should arguably step in and provide more oversight. 
2. Allow for members-only bargaining.  Caregivers like Pamela Harris only receive the benefits of the union-negotiated terms and conditions of employment because the state requires the union to represent all the employees in the bargaining unit.  Illinois could lift this requirement and only apply the collective bargaining agreement to the actual members of the union.  Such an approach to unionization would be a real anomaly in the U.S., which is premised in the public and private sector on exclusive representation.  But if certain workers do not want to bear the costs of organizing, then they should be free from its fruits as well.  Since members-only bargaining fits better with a consumerist, free-to-choose philosophy that runs pretty strongly in this country, you may see more experimentation with that model.  This group of workers would be a logical place to start.

There may be state or federal issues with either of these choices; I do not know, for example, whether the state could legally reimburse the home care workers differently depending on whether they joined the union or not.  But there is a fair amount of flexibility in public-sector labor law, and it will be interesting to see what new approaches states develop in the face of Harris.