Jennifer Klein
With changes to the US Department of Labor, US Supreme Court, National Labor Relations Board, Department of Health and Human Services, and many other parts of the regulatory state, liberals and conservatives alike have proclaimed the Trump era the apocalyptic end of organized labor in the United States. Indeed, conservatives have certainly pressed ahead full steam to make it so. Unions are losing much of the legal grounding on which they have stood for the last eight decades. Nonetheless, the savvier unions have found new footing, building foundations for unions to move from life support to fighting offense. From the Supreme Court’s 2014 Harris v. Quinn decision to its 2018 ruling in Janus v. AFSCME, federal courts have inserted themselves into labor relations in the most aggressive, pro-employer way since the late nineteenth century. Surprisingly, unions that have long balanced on the edge of public and private, of exclusion from the law, of hostility from courts, and of inclusion in the welfare state have some creative responses.
Care-worker unionism is one of those movements leading the way. For the last two decades, home health care has been one of the fastest-growing occupations in the United States, adding hundreds of thousands of positions at a steady clip. The workforce tripled between 1989 and 2004, with those who can be officially counted numbering well over two million workers by the end of that period. The US Bureau of Labor Statistics correctly projected rapid employment growth in home health-aide jobs for the next decade (US Bureau of Labor Statistics 2008a, 2008b, 2011; Howes, Leana, and Smith 2012, 81). Alternatively called personal attendants, home aides, and home-care workers, they are America’s frontline caregivers, who perform intimate daily tasks—such as bathing bodies, brushing teeth, putting on clothes, and cooking meals—that enable elderly or disabled people to live decent lives at home. They typically have earned hourly wages lower than those of all other jobs in health care (well below a living wage) and historically have labored without security of employment, medical or retirement benefits, workers’ accident compensation, or even sufficient hours (Crown, Ahlburg, and MacAdam 1995; Burbridge 1993; Dawson and Surpin 2005).
They labor in private spaces, meeting individual and family needs, but how they do their jobs is anything but private: theirs is a story of political economy that reflects the major shifts in work and welfare that define contemporary America. Home-care aides make up a vast workforce—much larger than those of the iconic auto and steel industries. Their lives tell us much about the shifting relations between home and market, state and family. Their fate links together some of our most challenging social issues: an aging society and lack of a national long-term-care policy; the rise of a vast medical-industrial complex; the neoliberal restructuring of public services; the crisis of domestic labor and decline of family income; new immigration and systemic racial inequality; the expansion of the service economy; and the precariousness of the American labor movement.
Remarkably, at the end of the twentieth century, home care became a pivotal sector in which unions experimented with new tactics. These workers transformed organizing strategy, union demands, and the very nature of collective bargaining. Since the job stood outside New Deal labor laws, unionization had to take shape apart from that framework. Union activists also had to take account of the complex interpersonal relations essential to care work. They had to enter into alliances with the receivers of care (who have labeled themselves “consumers”). Even though they labored in private homes and had no legal standing as employees, they turned the public welfare state itself into a terrain of social struggle. Workers themselves stepped forward, “out of the shadows” as they have put it, to transform labor standards by compelling states to recognize long-term care as public labor. By 2010, over 400,000 home-care workers had joined unions.
Just as they began to change the terms of such previously “invisible,” low-wage work, bringing the labor, the provision, and the clients of care into the public light of day, new attacks on the welfare state coalesced—precisely around the ideological meanings of such labor and the blurred boundaries between public and private it implied. As sociologists Daniel Beland and Brian Gran write, “The redefinition of the boundaries between public and private social policy has become a major economic and political issue in most advanced industrial societies” (Beland and Gran 2008, 2). In particular, these attacks emphasize the privatization of benefits and the privatization of risk—the very opposite of the underpinnings of “social security.” Indeed, having built up varying degrees of economic and political power, as well as economic gains, especially through key alliances that together defended public services and the social public budget, home-care workers and their unions became the direct target of an anti-labor and anti–welfare-state counteroffensive launched by conservative groups through the courts and Republican state electoral gains since 2010. The 2014 Supreme Court case Harris v. Quinn aimed to push care workers and recipients back into the shadows, where social rights do not penetrate. State retrenchment will be facilitated through reprivatization of the labor of the welfare state.
The litigation strategy pried open space for militant action by arch-conservative groups, including directly contacting workers to dissuade them from union membership. The direct-action strategy enabled them to insert another obstructive wedge between unions and state government, while anti-union forces waited for another “agency fee” public-sector-union case to work its way back to the US Supreme Court. Yet, because home-care unionism emerged from community organizing and poor people’s movements, these workers already knew nothing would be won without a fight, and, as stigmatized workers taking care of stigmatized people, unionism meant more to them than a few more dollars an hour.
In our book Caring for America: Home Health Workers in the Shadow of the Welfare State (Boris and Klein 2012) and in a number of articles (see Boris and Klein 2007, 2010, 2014), Eileen Boris and I have demonstrated that government has had a central role in creating labor markets in human and social services. Not only did particular US social and employment policies over the latter half of the twentieth century foster the creation of new occupations, funded by the state, they have also actively channeled particular workers into these jobs, especially poor and minority women, deploying and perpetuating gender and racial inequality. The beneficiaries of the services, the structure of the industry, and the terms and conditions of the labor were all products of state intervention (Boris and Klein 2012).
Given this structure of home care, it was never enough just to win collective-bargaining rights with individual vendor agencies. To make economic gains, the union had to go to government. Illinois provides a good case example, since it ultimately became a defendant in the fateful Supreme Court decisions Harris v. Quinn and Janus v. AFSCME. Illinois ran home-care services through two different agencies, the Department of Aging and the Department of Rehabilitative Services. The Department of Aging contracted with vendors, for-profit or nonprofit private agencies that hired workers and sent them out to work in the homes of elders. People under sixty received similar assistance from the Department of Rehabilitative Services (DORS), funded in good part by Medicaid after 1984. In keeping with the disability-rights ethos of independence, DORS relied on a different model: clients hired their own providers, who could be family or friends, but DORS claimed to be a co-employer and set wages—typically at the minimum wage. Regardless of which mode of provision they worked under, workers had no hospital or medical insurance, no paid vacation, no compensated sick days, no life insurance, and no compensation for time spent traveling to and from clients’ homes, often on long bus and subway rides. With no common worksite, they perceived themselves alone and isolated (Boris and Klein 2012).
Emerging in the 1980s, Chicago’s home-care Local 880 of the Service Employees International Union (SEIU) pursued innovative tactics and new allies. They not only reached out to workers in casual or service sectors but also experimented with new structures of representation and distinct forms of unionism. They had to devise legal and political strategies for an era in which governments denied they were the employer responsible for poverty wage rates or twelve-hour shifts, the National Labor Relations Board (NLRB) election often was a dead end, and courts refused coverage under the Fair Labor Standards Act (FLSA). Before caregivers were even able to bargain for better conditions, they had to see themselves as workers and fight for recognition as such by the public, the state, and the very users of their services. They had to seek the right to organize in the first place. Political brokering with the state thus became an important part of home-care unionism. They had to gain “visibility” and “dignity,” which became two key words both in their self-presentation and in media representations of home-care providers. Home-care workers and their allies among consumers had to challenge representations of self-sacrificing workers and helpless consumers, as well as the stigmatization of dependency, whether on other human beings or on the state.
Victories in the 1990s and early years of the twentieth century were the culmination of a thirty-five-year struggle that began with the surge in public-sector unionism in the mid-1960s. Home-care unionism benefited from a surge of organizing among poor, black, Latina, and immigrant women. Mirroring home care’s hybrid origins, home-care unionism had roots in the welfare-rights movement and in the dynamic growth in hospital and health-care unionism in the latter decades of the twentieth century. The movement drew lessons from domestic workers in New York and San Diego; farmworker unionism in California; public-sector militancy bound up with political struggle around state budgets in many cities; and the community organizing of groups like the Association of Community Organizations for Reform Now (ACORN). Local 880 in fact began as an ACORN chapter that sought to create solidarities out of the social structures inhabited by the poor.
Through persistent political action and mobilization with clients, Illinois finally agreed to take on the role of employer and engage in collective bargaining. By using collective bargaining, the state, workers, agency employers, and clients/consumers worked out a functional arrangement that, to a good degree, reduced labor turnover and provided more reliable social welfare support services (Boris and Klein 2012, chap. 6). Illinois officials decided that, in order to provide a consistent and essential service to its citizens, it would have to recognize its own role as “co-employer” of the actual hands-on providers of the service—the home-care workers. While the state seeks “to preserve customer autonomy whenever possible,” notes the Illinois official statement, “it does not diminish the State’s interests in the effective provision of services.” According to state officials, “personal assistants” perform services outlined in a “state-created plan.” While an individual or family may select an individual care provider, the department establishes the qualifications, approves the person for hiring, has the “customer” and worker sign a department-drafted agreement detailing responsibilities, and conducts an annual review of the worker’s performance. The state pays the worker’s salary and withholds Social Security and state and federal income taxes. “Customers neither pay their personal assistants nor may they vary the wage rate established by the state.” The state legislature ultimately determined to recognize the “personal assistants” and “homemakers” as public workers under the Illinois Public Labor Relations Act for the purposes of bargaining over wages, working conditions, training and safety, benefits, and establishing a grievance procedure to resolve disputes. Recognizing both the structural realities of the sector and the fact that isolated solo workers still constitute a “workforce,” state officials decided that “to effectively coordinate with this widely dispersed workforce, the State gives personal assistants the option to elect a union to negotiate with the State” and that this would be “the best way to ensure a workforce that will meet the needs of the State’s most vulnerable residents in a professional and effective manner” (Brief for Respondent [Pat Quinn, Governor of Illinois], Harris v. Quinn, 134 S. Ct. [2013], at 1–8); Harris et al. v. Quinn, 573, U.S. __ [2014]).
Consequently, while union membership fell in manufacturing and other private-sector enterprises, publicly subsidized home health care, and subsequently child care, became one of the few areas of union growth and substantial union density. Having honed a set of organizing and political strategies in Illinois, SEIU and other unions began to spread this model to other states, including Oregon, Washington, Maryland, New Jersey, Massachusetts, Missouri, and Connecticut. The spread of unionization not only resulted in higher wages (in Illinois, wages rose from $7 an hour in 2003 to $13 in 2014), coverage under state worker compensation programs, safety training, a grievance procedure, and health benefits for the workers but also, where the union had real clout, in more hours of service for the clients and due process rights, such as hearings if the workers faced termination of benefits (Brief for Respondent 2013, 7).
This set of successes caught the attention and raised the alarm of conservative opponents of organized labor and the welfare state. Partly owing to its innovative strategies of linking unionism and the welfare state, and partly owing to home care’s legal limbo (lacking legal recognition as “real work”), home care became an ideological arena in which a coalition of political conservatives, business associations, and anti-labor interests organized to stage a new assault on public-sector unionism and labor rights. This anti-union coalition has turned to the courts to undermine the gains care workers made through organizing within the welfare state.
Beginning with two lawsuits, filed in Illinois and Wisconsin in 2010, a group known as the National Right to Work Legal Defense Foundation (NRWLDF), supported by a who’s who of conservative think tanks (e.g., the Cato Institute, the Mackinac Center for Public Policy, and the Pacific Legal Foundation) sought to dislodge state-level executive orders and legislative mandates conferring collective bargaining rights. They did so by shifting the focus from employment law to First Amendment grounds (particularly so that they could make a constitutional argument the US Supreme Court could later take up). They generated three interlocking claims. First, by opening the door to unionization through political means, states had designated representatives for personal care providers, thereby denying them the right to choose their own political representatives. This is an alleged violation of the First Amendment. Second, there is no employee-employer relationship between the care providers and any employer, and thus such representation has nothing to do with collective bargaining or labor standards. Third, this lack of an employee-employer relationship means the state has no right to authorize unions as the representatives of care workers in negotiations with state oversight authorities. William L. Messenger, staff attorney for the NRWLDF, wrote, “Providers are simply a group of citizens who receive monies from a government program”—in other words, they are not really workers at all! (Boris and Klein 2010; Brief for Plaintiffs, Harris v. Quinn, 134 S. Ct. [2013]). Indeed, the NRWLDF carefully constructed the case to imply as much by choosing six plaintiffs who cared solely for family members and suggesting that they represented the vast majority of the two million other workers in the field.
One of the intellectual genealogies of this argument stems from the work of libertarian legal scholar Sylvester Petro, who argued that unions in the United States were coercive institutions with authoritarian leadership. Petro insisted that “labor solidarity was not a social fact but a creation of undemocratic laws that allowed unions to politicize the workplace.” He contrasted mandated collective bargaining with “freedom of individuals to dissent from or avoid membership in labor organizations” and the protection of their “right to work.” According to Joseph McCartin and Jean-Christian Vinel, Petro applied this “rights discourse” to public-sector unions and became one of the nation’s most effective critics of public-sector unionism; indeed, in 1973, he created an entire new center at Wake Forest University Law School in North Carolina that was dedicated to developing conservative legal thought on “right to work” doctrine and identifying the corruption of public-sector bargaining. Petro argued that public-sector unionism undermined government sovereignty and popular sovereignty and therefore First Amendment freedom of expression and association (McCartin and Vinel 2012, 232–244).
Petro had a chance to put these ideas into play with the 1977 Abood v. Detroit Board of Education case. Petro argued that public-sector union activity was inseparable from politics. Virtually all the things such unions did were inherently political acts, and thus any money paid (even if only fair share fees and not full dues or Committee on Political Education [COPE] funds) would be put to political uses. The compulsion to make payments to unions therefore represented a violation of a worker’s constitutional rights. The ruling in the Abood case stated that, while the union had to represent everyone, it is unconstitutional to require a public employee to join a union (although in fact there were no union-shop agreements in any state or city). The union, however, could require covered workers to pay agency or “fair share” fees to support collective bargaining, since workers would reap the benefits of the contract, a ruling that the justices saw had a number of precedents. Nonetheless, workers could opt out of having a portion of their fees used for political activities (McCartin and Vinel 2012, 237, 240–248).
In 2013, NRWDLF got the US Supreme Court to agree to hear the home-care workers’ case Harris v. Quinn on First Amendment grounds; at the same time, the group also asked the Court to look more broadly and overturn the forty-year-old Abood v. Detroit Board of Education precedent that stands as one of the foundations for public-sector unionism and collective bargaining. Contrary to the actual history of home-care service, the petitioners represented the home as private and the state as interfering in what allegedly had always been the nonmarket, nonwage private sphere. It redirected the state’s interest into a question of private interests: the family versus the union.
The conservative majority on the US Supreme Court agreed and, in a decision written by Justice Samuel Alito, handed down what an essay in the magazine The Nation called “one of the most anti-labor rulings flung from the bench in recent years” (Boris et al. 2014). In Harris v. Quinn, the Court ruled that home-care workers paid through Medicaid do not have to pay fair share fees to support collective bargaining, because they are not bona fide public employees. Since Alito could not at the same time claim they are not workers and vacate Abood’s precedent for public-sector workers’ collective bargaining, he invented a new category, calling the workers “partial public employees.” In doing so, he could again demote their status as real workers, while also signaling to right-wing groups that he was ready to overturn Abood if they brought a real public-sector workers case to the Court.
The decision colludes in misidentifying care workers as “just moms” and thereby denies women working in the home the same rights as other employees, returning unionized personal attendants to the status of household workers still excluded from the National Labor Relations Act. By dismissing the decades-long struggle of African American, Asian, Latina, and immigrant women for recognition as workers, Harris v. Quinn reduces a state-regulated labor market to individualized acts of love and obligation, furthering the agenda of well-funded anti-union forces. The Court deliberately chose to ignore the ways in which home care is a business sector comprised of a modern, globalized service workforce. Writing for the dissenting minority, Justice Elena Kagan concluded, “The [Court’s] majority robbed Illinois of … choice in administering its in-home care program.” Such a ruling subverts the state’s determination of these labors as being of the utmost public interest (Harris v. Quinn; Harris v. Quinn, dissent, at 6–7, 4, 8; Boris and Klein 2014).
In the eyes of the Court’s conservative majority, the home is a private place that a union has no business invading. “Personal assistants spend all their time in private homes,” Justice Alito wrote. Union organization therefore “does not further the [public] interests of labor peace.” The Harris decision aims to insulate the home from law and labor standards, reprivatize care, and thereby eliminate the need for and legitimacy of unions. The emphasis on the imperative of separating what is private from what is public is anxiously woven throughout the majority opinion. “Today’s decision is good news for our nation’s families, who are now protected from a disturbing union scheme to turn private homes into unionized workplaces,” said Sen. Lamar Alexander (R-TN), the ranking member of the Senate Health, Education, Labor and Pensions Committee, adding, “The Supreme Court has preserved the First Amendment rights of dedicated parents like Pamela Harris.” History, however, contradicts this view. The idea of the private, insular home, untouched by market or state, is a myth (Boris and Klein 2014).
Yet, through the potency of this myth, Justice Alito also opened the door to overturning the Abood precedent, affecting millions of other public-sector workers. Alito brought in a number of tangential arguments to build the case that Abood violates the First Amendment. For legal scholar Joel Rogers, the First Amendment has also been used in cases “against the affirmative state” (Rogers 2014). By taking aim at the ambiguity of care labors (which seemed to hover between paid employment and unpaid familial obligations) and the workplace (both open to the market and seemingly closed to the purview of the state), conservatives had created a new route toward breaking the closed shop and a new front in the battle over “right to work.”
Using the door Justice Alito opened, the Center for Individual Rights (CIR), a conservative group previously involved in anti–affirmative-action and evangelical cases and now making its move into antiunionism, backed a suit against teacher unionism that could fulfill the agenda of undermining public-sector bargaining. Once again, it involved “fair share fees” that cover the cost of collective bargaining. In Friedrichs v. California Teachers Association (2016), teachers from Orange County (a crucible of modern conservatism) who are not members of the union sued on the grounds of “forced fees and forced unionism.” Using the language of the First Amendment and free speech, the CIR’s lawyer claimed that this was a “regime of compelled speech … that benefits unions.” The fact is that the Supreme Court had already ruled long ago that government employees are not required to pay for activities of the union that are not associated with collective bargaining, but conservatives have sought to muddy the waters by casting all union activities as politics. The CIR’s president said, “We are seeking the end of compulsory union dues across the nation on the basis of the free-speech rights guaranteed by the First Amendment” (quoted in Clough 2015). Strategically, conservatives have known that if these fees are banned, it will create a crisis for public-sector unionism and make “right to work” the rule in the public sector (Savage 2015; Eidelson 2015). The Supreme Court agreed to hear the case in 2015–2016. While public-sector unions waited for the axe to fall, bizarrely enough they were spared by the fortuitous—and untimely—death of Justice Antonin Scalia, which left the Court deadlocked four to four when it decided the case.
That reprieve would only hold so long—as anti-union forces fished around for another case. More immediately, the consequences of Harris v. Quinn were roughly twofold. First, institutionally, the ruling hit the unions that already relied on agency fees—or unions wherein the largest units relied on them. Once the Friedrichs case was on the docket and the possibility loomed of a successor case, some unions stopped collecting agency fees. Others continued to collect agency fees but put them into an escrow fund. Strategically and ideologically, says Deborah Schwartz, vice president of the home-care division of SEIU Healthcare 1199 New England, “it changed the conversations we had to have with our membership”—and potential membership. Facing an existential threat, they now had to acknowledge that defense was not a sufficient strategy (Schwartz 2018). Instead, home-care unions have once again turned to aggressive campaigns that mix fleet-footedness on the ground with targeted litigation and ideological political education. Taking on the full frontal assault of the current right wing, they recognized, requires a fundamental ideological battle as well as a tactical one.
Second, emboldened by Harris v. Quinn, a well-organized Right is pushing a mass union disaffiliation drive among care workers. Emerging in the Pacific Northwest, where care workers and public workers had strong SEIU locals, the Freedom Foundation (FF) became an innovative player in escalating the movement against public-sector unions. A libertarian and “free-market” political group, the FF receives funding through the State Policy Network (backed by brothers Charles and David Koch), the Walton Family Foundation, and the M. J. Murdock Charitable Trust. In care work, it particularly targeted SEIU, with “drop campaigns,” a direct-action strategy. For decades, anti-union management consultants and law firms had instructed employers on how to deploy union disruption and decertification tactics and had prepped employers for small and large battles, but now the Freedom Foundation went directly for the workers themselves. They launched a door-to-door canvassing campaign aimed at unionized home-care and child-care workers, already low-paid. Their operatives have been filing public records or Freedom of Information Act requests with states and counties to obtain the names and addresses of care workers. Going to workers’ homes, FF canvassers in Oregon and Washington told workers they should exercise their constitutional right to refuse agency fees and union dues, ratcheted up their pitch by urging them to drop the union, and beseeched them to recapture both their hard-earned money and their “liberty and freedom.” (Never mind that as women of color working in homes, they had never had much of either.) FF cadres claim to have knocked on more than 10,000 doors in Oregon and Washington. They used saboteurs who showed up to disrupt union training and meetings and created an aggressive podcast. In part, groups like the Freedom Foundation have gone after home-care and child-care workers because they believe they can easily dismiss the notion that they are workers. As one Freedom Foundation official described child-care workers, “those workers are basically babysitters.” In addition, they are seen as the “low-hanging fruit,” particularly because they are low-paid and poor. “They’re knocking on doors,” notes Mary Kay Henry, national president of SEIU, “saying ‘Do you want to save $30 in dues to buy your kids’ shoes?” (Greenhouse 2016). But these workers are also targeted because conservatives know that SEIU is one of the largest unions in the country and that by hitting home-based care workers they can take out 25 percent of the SEIU membership in one fell swoop (Kelleher 2018; Greenhouse 2016).
Having used these activities as a testing ground, FF activists turned to the large buildings and state government plazas where public-sector employees worked, confronting them as they entered or left the buildings. In December 2015, FF activists dressed up as Santa Clauses on the plazas where state workers are employed and prodded workers to “give themselves a Christmas present” and reclaim their money that went to the union. Next up for them were teachers’ unions and public schools (Greenhouse 2016).
Freedom Foundation activists are very explicit and open about their anti-union campaign. After all, what would be the point of discrediting unionism ideologically if you are unwilling to speak the name—and there is no subtlety to their language or objectives. “Labor bosses are the single greatest threat to freedom and opportunity in America today,” wrote FF director Tom McCabe. His FF fundraising letter stated directly, “The Freedom Foundation has a proven plan for bankrupting and defeating government unions through education, litigation, legislation and community activation” (Greenhouse 2016; Freedom Foundation 2018).
They are more cagey about the deeper political agenda: reverse all progressive gains, destabilize public services and institutions, and bankrupt liberal-left coalitions. For example, in Washington State, the Freedom Foundation has aimed to reverse progressive gains such as higher minimum wage laws and, through defunding unionism, flip the state from Democratic to Republican: the Scott Walker model. In 2016, the Freedom Foundation, which is also an active member of the American Legislative Exchange Council (ALEC), “crossed the Columbia River,” in the words of McCabe, and began moving beyond its original base in the Northwest. It is now in California. Meanwhile, ALEC and the State Policy Network kept the ball rolling through state “right-to-work” initiatives and laws.
For the Illinois union that was the plaintiff in the Harris v. Quinn case, SEIU Healthcare Illinois, Indiana, Missouri, Kansas (HCIIMK), home-care and child-care workers were the two biggest units at the time of the case. In 2014, the union had 91,000 to 92,000 members paying agency fees. Keith Kelleher, who was president of the union at that time, estimates that had they just decided to wait out the case, they easily could have lost half that membership. Instead, as soon as the Supreme Court accepted the case, the union launched a major sign-up campaign. Hundreds of staff and member organizers fanned out to “hit the doors,” hold house meetings, and host membership events. As a result, they signed up another 16,000 workers in a twelve-month period. This meant that about 65 percent of the public home-care members signed up (Kelleher 2017). Kelleher wrote, “Let’s not forgot how we got here. Gov. Rauner chose to use low-wage home healthcare workers, and their health insurance and economic security, as ‘leverage’ for his extreme anti-worker and political agenda” (SEIU Healthcare-Illinois, Indiana, Missouri, Kansas 2015).
Anti-union forces were not complacent, however. With the Harris ruling in hand, they, too, mobilized on the ground. The Illinois Policy Institute and the Liberty Justice Center intensified the pressure to roll back careworker unionism by targeting workers directly and by funding Illinois governor Bruce Rauner, who in turn has persistently tried to eliminate contract obligations and even legislatively mandated bargaining issues. The union has felt the effect, as membership numbers have dropped; there are now around 62,000 to 63,000 child-care and home-care workers in those units (Kelleher 2018). Consequently, as Kelleher acknowledges, to simply keep going on that path—sign up workers and expect agency fees and dues checkoff—is like running on a treadmill and expecting to get somewhere. With all the focus on the 2017–2018 Supreme Court’s Janus case, Kelleher says, “Look: We’ve already been Janused. We’ve already been Friedriched” (Kelleher 2018).
Home care nevertheless had some crucial elements that could form the foundation for the fight back. Both their unionization and their gains were relatively recent. “We still had the institutional memory and the techniques [of active mobilization],” explains Kelleher, “Our people stick to the union because the process of unionization is still in recent memory.” In addition, from its inception, home-care unionism was a form of unionism that was linked to issues of low-income communities of color. Since their earliest days as part of ACORN, Chicago home-care workers had been organizing around housing access, credit discrimination, redlining, and living-wage ordinances. They engaged in squatting in housing and direct action against utility shutoffs. They also regularly went to Springfield to lobby legislators and the governor to raise their wages, recognize the union, and guarantee client hours and due process hearings. They formed alliances with consumers with disabilities and marched on the state capitol and attended hearings together. They used political action to link better wages and better care (Kelleher 2017, 2018; Boris and Klein 2012, chap. 6).
Indeed, union officials and rank-and-file leaders from California, to Illinois, to Connecticut have argued that home-care workers are among SEIU’s most politically active members. Deborah Schwartz, who worked with the SEIU home-care unit in Oregon and is now vice president of the Home Care Division in SEIU HealthCare 1199 New England, found that in both places, home-care workers had the highest degree of political activism. When I interviewed unionists from SEIU United Healthcare Workers West in the Bay Area and asked why hospital workers, who already had higher wages and good benefits, would want to hitch themselves to low-wage home-care workers, the answer I received—without hesitation—was that home-care workers knew how to be political: they showed up at Board of Supervisors hearings, they lobbied the state, and they pressured public authorities. Nationally, even though they earn a lower income, they give a higher percentage of their income to COPE funds and make more contributions.
For seventy-five years, home-care workers stood outside New Deal labor standards and labor rights and therefore had to be innovators out of necessity. Home-care workers have always had to fight a threefold battle: getting their labors recognized as real work; getting the home recognized as a workplace; and using collective action directed at the state to win improved conditions and security.
Given that its workforce has been primarily poor women and women of color—and is tied to the racialized legacies of servitude, segregated labor markets, and coercive welfare policy—home-care unionism (whether among Latinas in California, African Americans in Chicago, or people from the Caribbean in New York) has been intimately, and explicitly, bound up with civil rights and women’s rights. And in their alliances with disability activists, as both groups fought against stigmatization, forced dependence, and invisibility, they also articulated their struggle as one of human rights. Consequently, in the current environment, home-care unions emphasize what has driven their movement all along. In Kelleher’s words, “Our union is all about gender rights, workplace rights, civil rights and human rights” (Kelleher 2018).
In New England, SEIU 1199 decided there was no need to wait for the next anti-union Supreme Court ruling to drop on them; the hostile open-shop movement was already upon them. In Connecticut, the main anti-union aggressor SEIU and AFSCME face is the Yankee Institute. More generally, the aggressive direct action of the Freedom Foundation, the successes of ALEC’s state-level right-to-work efforts, and now President Trump’s hostile appointments to the NLRB and Department of Labor made clear that there was no more time to waste on purely defensive or rearguard actions. Wisconsin, Michigan, Indiana, and Iowa have passed “right-to-work” laws, as well as measures to limit collective bargaining. This was followed by West Virginia going “right-to-work” in 2016 and Missouri and Kentucky doing the same in 2017. In anticipation of the Janus v. AFSCME decision, Labor Notes soberly noted, “Life will change for unions in the 23 states that till now have rejected right-to-work laws” (Winslow 2017).
For home-care and child-care unions, the Trump regime poses two more existential threats: the elimination of the dues checkoff and the access to employee lists. Dues have been collected from federal Medicaid payments to states for workers caring for Medicaid recipients. The Department of Health and Human Services is planning a rule change on Medicaid regarding what is known as wage reassignment. States that allow union dues checkoff through this mechanism include Connecticut, Maryland, Massachusetts, Missouri, New Jersey, Oregon, Vermont, Washington, and Illinois. The impending rule change would mean the end of dues checkoff, which, for example, in Illinois would directly affect 20–25 percent of the union’s membership. In a sector where workers are individually isolated, work is insecure, and caregivers shift jobs and homes regularly, loss of dues checkoff would be an enormous impediment. Second, the NLRB has put the Excelsior Underwear, Inc. 156 N.L.R.B. 1236 (1966) on its target list. Under this ruling, when a union has obtained a certain threshold of signed-up members, it is entitled to receive the list (often called the Excelsior list) of all employees, including those not in the union. The union could then visit and talk to all employees. Again, given the structure of home care, where there is no central workplace, the Excelsior list has been critical. These kinds of rollbacks strike at the heart of what made careworker unionism so successful over the last two decades: the ability to recast home-based work as the labor of the public welfare state and leverage its connection to state policies of care support.
Careworker unions will have to become nimble and creative again, and, given their history, they are confident they can do so. As Kelleher explained, well-entrenched labor unions have become bound to the mechanisms of state dependence, such as NLRB certification and dues checkoff. Unions, however, existed before there was dues checkoff. In Chicago, women built a strong, militant union that produced results long before there was state recognition. In the 1980s, when the union was connected to ACORN, it built power by recruiting members through door-to-door canvassing, house meetings, and the development of leaders for specific actions. From the get-go, it mobilized members for electoral campaigns to gain access to political power (Kelleher 1985; Tait 2005; Brooks 2005). It would “build an organization first” that could maintain itself during workplace campaigns that could take years. Members paid dues from the moment they signed up, well before the union had a contract or certification; for people who made little, paying over that few dollars a month cemented organizational loyalty (SEIU Local 880 n.d.). In the early years of the organization, Kelleher explains, “We didn’t wait for the employer to formally recognize us, but forced the employer to deal with us without official recognition.” It was the members that made it a union, not the state (Kelleher 2005, 27, 51). Now that it is a much bigger union, seeking to represent a wider range of health-care workers, it is returning to that orientation. For example, it has intensified campaigns to organize hospital workers. At this point, Kelleher says, “We think we can win more without going through NLRB certification”—as home-care workers once did (Kelleher 2005).
The unions are returning to those tactics while simultaneously reorienting particular institutionalized gains of collective bargaining. Most importantly, they are leveraging guaranteed training programs into deep and broad worker education. In Illinois, California, and Connecticut, public home-care workers’ contracts with the state created a mandatory union-run orientation and training program. In addition to the specific allotment of time for training all new careworkers, it also specifies that consumers have to participate for some amount of time. The goal has been to make these programs increasingly capacious. Beyond basic skills preparation, it goes over what is in the union contract, what workers’ rights are, what the boundaries are, and what workers can say no to.
This is still a fight, and union reps make sure workers have a reason to fight for the union. In Illinois, Republican governor Bruce Rauner keeps trying to eliminate union training time and state funding for it. (In fact, the Janus case was financed by Rauner and the Liberty Justice Center, which have tight financial ties; Rauner flew to Washington, D.C., to attend the oral arguments in the case before the Supreme Court.) Having secured this training time, these unions have been tooling up to prepare for the post-Janus era of the open shop. They have been extending the training by a half-hour for political education. As workers leave, union leaders speak with them about paying dues directly, including through direct bank transfer—thus going through the state will not be necessary. These discussions insist that the union, and all that it makes possible economically, politically, and socially, are rooted in fundamental rights. “These are rights we have. We have a right to a union and a right to act collectively in the state. They [anti-union forces] are taking away your rights and we can’t let that happen.” The union has widely distributed a “Recommit to Your Union” pledge, which includes a section called “What Will You Do to Fight for Your Rights?,” asking members to check off a list of actions they will take, from signing letters and petitions; to attending union meetings, press conferences, and rallies; to engaging in civil disobedience (SEIU Healthcare-Illinois, Indiana, Missouri, Kansas 2018).
Training now emphasizes that it is within workers’ rights to fight when terms and conditions of employment contracts seem to be violated. Public-sector unions from Washington and Oregon to Wisconsin and Connecticut are finding that when the slightest irritant arises, workers are quick to find fault with the union, call up the union representative, and ask to be withdrawn from the union. To counter this tendency, 1199 New England home-care officials explained, they are retraining organizers and stewards on how to lead a shop fight—to take on coercive bosses, to demand timely fair payment, to fight for consistency in hours, and to fight when due process is denied. The goal is explicitly “to build a fighting organization,” affirms Norma Martinez, formerly with Oregon’s public-sector Local 503 and now a lead organizer with 1199 New England’s Home Care Division, “but this takes concerted training.” The union is doing intensive education to make workers clearly aware of the systemic threats they are facing—“inoculation conversations”—and preparing the union to confront these threats. “We are building power,” the education programs emphasize (Martinez 2018).
Beyond inoculation, however, home-care organizers, staff, and rank-and-file leaders state clearly, this is the time to build a vision. SEIU 1199 New England (1199 NE) has taken an additional step by creating rank-and-file workers’ education sessions and the Home Care Leadership Academy. “We want workers to understand where their power comes from,” says Puya Gerami, 1199 NE education director. They are no longer speaking the ameliorative language of the AFL-CIO about protecting the “middle class” and “the middle-class paycheck.” This is now about the ruling class versus the working class. “We’re building an organization that can take on the power of the ruling class,” as Gerami puts it. What is a union for? Education programs emphasize that all of us have to sell our labor to a boss and that the boss has control over it. The only way to counter the control and expropriation of one’s time and body on the cheap is through collective solidarity and action. The increasing difficulties and perpetual insecurity experienced by care workers are linked to the privatization of public responsibilities and austerity budgets (Gerami 2018). The new conversation insists that the union must be a fighting machine to take this on but also must gather other stakeholders into an alliance that can pressure the state on such exploitation. The union is the organization that can bring low-income workers together with people who need health care, elder care, child care, rehabilitation, living space, and control of their time, to articulate a vision of a healthy, vital, and thriving community through greater equity, social justice, and social investment.
To prepare and engage workers in that process, 1199 NE launched a Home Care Leadership Academy in spring 2018. The program cultivates rank-and-file leaders—of different ages, ethnicities, and immigrant backgrounds—and then brings them in for an eight-month program of deep education aimed at long-term change. Drawing in a diverse group of workers from around the region, the program has two dimensions: political education and skills training. The political education curriculum includes units on labor history, structural racism, intersectionality, the legislative process, the war on unions, and understanding of economic inequality. Skill building runs the gamut from public speaking to mapping networks, facilitating a meeting, and conducting one-on-one recruiting conversations. Between class-based sessions, members apply what they are learning in the field by presenting at a union meeting, recruiting a fellow member to a union activity, telling members about the contract won in April 2018, and recording their ideas for subsequent rounds of “train-the-trainers” (Gerami, e-mail message to the author, July 7, 2018). In the era of the open shop, members not only have to be clear-eyed about why they belong to the union but also have to be prepared to step up and run their own organizations.
Public-sector unionism has long meant redefining work and rights for many low-wage workers, especially women. The jobs of school custodians, cafeteria workers, hospital orderlies, and teachers had been stigmatized, associated with dirt, refuse, bodies, welfare, and dependence. From their inception, the nation’s basic labor laws—the National Labor Relations Act; the Social Security Act; and the Fair Labor Standards Act, which regulates maximum hours, minimum wages, and overtime compensation—excluded service workers in public agencies. Enacted in 1938, the Fair Labor Standards Act still did not cover state and local workers by the early 1970s. Prior to the 1960s and 1970s, public-worker organizations lacked legal rights. They had no right to bargain, arbitrate disputes, or strike. Government workers could be fired simply for joining a union. Public workers labored under conditions that resembled those of involuntary servitude. Public-sector unionism fundamentally changed the status of these jobs. As workers who have historically made demands for high-quality public services and fair procedures, public workers opened more pressure points within the political process for public claims on the state. They helped reformulate economic and political citizenship.
The recent campaigns by conservative Republican governors to strip public workers of bargaining rights and the litigation strategy draw from the same deep wells of antiunionism, but they also draw on disdain for the work itself and for those who do it—the taint of dependency as something that is feminized and racialized. Without the vital movement of care workers and their web of social alliances, we end up with care on the cheap, pitting workers against recipients; hardly a stable solution to the mounting demand for long-term care at home. By ignoring realities on the ground, we succumb to the racialized and gendered anxieties of the past rather than seriously attempting to meet the pressing social needs of the present and future. Establishing the legitimacy of care as productive, necessary labor—a real job—would recognize the realities of both our aging society and our service economy and thereby advance the long-overdue work of updating labor standards and collective representation for the workplaces of a new century. Because of their closeness to the consequences of austerity budgets, privatization of public services and institutions, and the struggles of people who do not have means, care workers can help lead the class struggle for social equality in new ways.
Without collective form and collective action, workers would have no free speech on the job: that was the fundamental recognition of the New Deal. Conservative jurists and thinkers have now sought to cast workers as political agents or citizens only in the narrowest of individual terms. The notion that the collective power, voice, and authority of the union subvert the political rights and voice of the individual has been at the core of the “right-to-work” campaign since the 1940s. Today’s jurisprudence holds that not only is the First Amendment a right solely of individuals in isolation but also that it is not a right to be exercised within the realm of work. With the Janus case, the Supreme Court drew a hard line between employment, where individuals can allegedly negotiate individually and directly with the employer (no matter the scale or structure), and the political realm, where individuals exercise free speech and franchise. Deliberately masking the power relations of employment, it resuscitates several pre–New Deal fictions: that an individual can “negotiate” directly with the boss; that employers are not coercive, only unions are; that industrial relations are a private, not a public, concern; and that the prerogatives of private property are so broad that they foreclose freedom of assembly (Janus v. AFSCME). In her dissenting opinion, Justice Elena Kagan, explicitly reminding us that states are employers, pointedly avers that in Abood the Court “understood that expression (really, who would not?) was intimately tied to the workplace and employment relationship. The speech was about ‘working conditions, pay, discipline, promotions, leave, vacations, and terminations … the speech occurred (almost always) in the workplace; and the speech was directed (at least mainly) to the employer.” Therefore, Abood “was meant not to undermine but to protect democratic governance—including over the role of public-sector unions” (Janus v. AFSCME, Justice Kagan dissenting, 12–13, 26–28). At a time when the deficits in political and economic democracy grow deeper and more entwined, unions will have to elevate freedom of association and freedom of assembly to generate new forms of democratic participation throughout our polity.