Caregivers who surrendered portions of Medicaid payments in an unconstitutional forced dues scheme are attempting to recover their lost wages.
A group of caregivers petitioned the Supreme Court to overturn lower court decisions that blocked a class action lawsuit aimed at taking back $32 million from SEIU Healthcare Illinois, Indiana, Missouri, Kansas (SEIU). The home health aides, many of them caring for sick relatives full-time, were forced to pay the union fees, despite the fact that Medicaid, rather than SEIU bargaining, established their reimbursement rates.
In 2014, the Supreme Court ruled 5-4 in Harris v. Quinn that the scheme was unconstitutional and that the home health aides could not be considered public employees. The plaintiffs argue the court should fully mend the injury caused by the forced dues system by allowing them to recover the back pay. If successful, the suit would establish that fee or dues payments must be made on a voluntary basis, rather than an opt-out system in which the burden of withdrawing support falls on individual workers.
"The unauthorized fee seizure itself would inflict a First Amendment injury. So called 'opt-out' requirements would be unconstitutional, as only an 'opt-in' requirement—i.e., that the individual consent to the deduction of union fees—would not inflict a First Amendment injury," the petition says.
SEIU did not respond to request for comment.
The dues deduction scheme was first put into place by imprisoned former Gov. Rod Blagojevich and continued by his successor Democrat Pat Quinn. Several other states had similar systems in place and ended those programs following the Supreme Court ruling. While the case allowed the health aides to discontinue payments to the unions, there has been no system-wide reimbursement on past payments. In 2016, an Obama appointed federal judge in Illinois blocked a class action suit, ruling that plaintiffs needed to establish at what point they came to oppose paying dues.
"To prove injury, and the complete constitutional tort, plaintiffs must prove contemporaneous subjective opposition to the compelled payments," District Court Judge Manish Shah ruled.
The Seventh Circuit Court of Appeals upheld Shah's ruling. Plaintiffs are asking the court to overturn those decisions, arguing that many aides "silently endured" the system in order to avoid disrupting Medicaid reimbursements that made caring for their patients or relatives possible. It also makes clear that named plaintiffs have established their opposition by launching costly legal battles in the first place.
"A holding in this case that an agency fee seizure injures nonmembers' First Amendment rights, even absent objection, would settle whether unions can require nonmembers to object to paying agency fees to avoid fee seizures," the petition says. "A class certification case, like this, is the ideal context in which to evaluate that question because only a plaintiff class will include individuals who silently endured agency fee seizures."
The petitioners say workers need an avenue to recover lost wages to curb the incentives unions have to concoct illegal dues schemes. If they are allowed to keep the profits from what courts have deemed illicit dues collection, they will attempt to keep pipelines active for forced dues collections, according to the plaintiffs.
"To allow unions to profit from unconstitutional fee seizures will beget more unconstitutional fee seizures," the petition says. "Public sector unions will have little incentive to comply with that ruling and cease their agency fee seizures. Instead, unions will have a strong financial incentive to keep seizing fees from nonmembers until a court forces them to stop."
The caregivers filed the petition with the National Right to Work Legal Defense Foundation on Monday. The plaintiffs asked the court to hold the case while it awaits the outcome of Janus v. AFSCME, a case seeking to declare mandatory unionism in the public sector unconstitutional. The court will hear oral arguments in that case on Feb. 26.