Calling into Question Compelled Unionization Schemes

Date: July 20, 2017

In July, 2017, the National Federation of Independent Business Small Business Legal Center and Cato Institute urged the U.S. Supreme Court to grant certiorari in Hill v. SEIU. This case challenges a controversial regime that requires Illinois homecare workers to affiliate with a public employee union. Other states enacted similar regimes—usually proceeding on the assumption that workers providing certain services, paid for with public funds, may be treated as “public employees” in order to compel union affiliations.

By way of background, Supreme Court precedent currently holds that government may compel “public employees” to financially support public employee unions. But more recently, in Harris v. Quinn, the Supreme Court repudiated the suggestion that states can simply dub workers to be “public employees” to force them to pay union dues. In other words, workers employed by private firms, and independent contractors, cannot be required to fund union activities.

One might have thought that would be the end of progressivist efforts to force unionization upon non-governmental employees. But, in fact, the Harris decision has done little to impede state and local efforts to foist union representation upon homecare and daycare workers. And recently the City of Seattle has chosen to push the envelope even further in labeling Uber drivers (who accept no public funding) as public employees in order to compel affiliation with a public employee union.

Now, instead of seeking to affirmatively force non-governmental workers to pay for union activities, we’re seeing efforts in numerous jurisdictions simply to force private employees into a relationship with the unions in the hope of bolstering their lagging numbers. Specifically, Illinois law requires that homecare workers must accept representation from the Service Employees International Union (SEIU) as their exclusive representative for collective bargaining negotiations with the state. In other words, regardless of whether a homecare worker objects to the positions SEIU may lobby for in bargaining with the state, SEIU speaks for them as a matter of state law. But in our view that’s a clear cut example of compelled speech and an indefensible infringement upon the freedom of associations—which means these schemes should be struck-down under the First Amendment. Accordingly, we’re calling upon the Supreme Court to do just that.

For more commentary on this case, check out Ilya Shapiro’s analysis at Cato Institute. And to learn more about NFIB’s efforts to dismantle compelled unionization schemes nationwide, read this post on our recent filing in Janus v. AFSCME—which urges the Supreme Court to reconsider the very notion that government may compel public employees to fund union activities.

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