In what appears to be a significant victory, SEIU 775 and the State of Washington have agreed to cease deducting union dues without authorization from the wages of home caregivers serving Medicaid-eligible clients.
The about-face came after a multi-year effort by the Freedom Foundation to end the practice, culminating with a federal class-action lawsuit filed against the union and state in July seeking to end the unauthorized seizures from thousands of caregivers.
After it unionized Washington’s individual provider home care aides (IPs) in 2002, SEIU 775 and the governor’s representatives in the Office of Financial Management (OFM) agreed to provisions requiring all IPs to pay union dues or fees in the collective bargaining agreements (CBAs) setting IPs’ wages and conditions of employment.
In 2014, however, the U.S. Supreme Court in Harris v. Quinn struck down as an unconstitutional “scheme” requirements that “partial-public employees” like state-paid home care workers financially support a union as a condition of employment.
Every other state in the country where such workers had been unionized interpreted the decision (correctly) as permitting them to only deduct union dues from caregivers’ wages if authorized by the provider.
Even the state of Washington took this view when renegotiating three out of the four CBAs affected by Harris. State collective bargaining laws designate four groups of workers as public employees “solely for the purposes of collective bargaining,” including: (1) Individual providers, RCW 74.39A.270; (2) family child care providers, RCW 41.56.028; (3) language access providers, RCW 41.56.510; and, (4) adult family home providers, RCW 41.56.029.
Each of these groups was protected against mandatory union payments by the Harris decision. At the time of the ruling, family child care providers were required to pay union dues under Article 5 of the CBA between SEIU 925 and the state. However, Article 5 was renegotiated after Harris to provide that the state would only deduct dues from a provider’s pay “[u]pon proper authorization.”
Similarly, Article 11 of the CBA governing language access providers required payment of union dues or fees as a condition of employment, but was changed after Harris to specify that dues would only be withheld from the wages of “interpreters who elect to become members of the Union.”
Though unionized, adult family home providers had not been required to pay dues as of the Harris decision, though efforts were underway to implement such a requirement (see the memorandum of understanding (MOU) at the end of the CBA). Article 13 of the 2015-17 CBA negotiated after Harris simply provided that the state would collect dues “[up]on written authorization from an adult family home provider.
SEIU 775, however, is the largest and most politically influential of the four Washington unions affected by Harris. While the state’s initial post-Harris bargaining position was that it would only collect dues “[u]pon proper authorization from an individual provider,” it ultimately adopted the union’s preferred approach.
The final language in Article 4 of the 2015-17 CBA required the state to “deduct the amount of dues or, for non-members of the Union, a fee equivalent to the dues from each home care worker’s payment for services…” Although the CBA also noted that IPs “who inform the Union that they do not wish to join or financially support the Union will not have any fee deducted from the payments made to them by the State,” the deductions occurred automatically and without the IPs’ permission unless and until cancelled in writing.
In a March 2015 court declaration, SEIU 775 secretary-treasurer Adam Glickman admitted the union was then seizing dues from the paychecks of about 6,000 IPs who had never signed up for union membership.
According to state payroll data obtained by the Freedom Foundation under the Public Records Act, annual dues for the average IP since the Harris decision have been about $600. If SEIU 775 collected $600 per year in dues from 6,000 IPs every year since Harris, the amount of money seized without permission from caregivers’ wages would total about $14.4 million.
The Freedom Foundation began fighting back against this immoral and illegal practice shortly after Harris. In the 2015 legislative session, the Freedom Foundation supported Senate Bill 5671, which would have brought state law into alignment with Harris and clarified that the state could only deduct dues from the wages of employees affected by Harris upon their written authorization. SB 5671 was passed by the Senate Commerce and Labor Committee but made it no further due to opposition from union-backed legislators.
In November 2015, the Freedom Foundation filed litigation against SEIU 775 and Gov. Jay Inslee in state court on behalf of Miranda Thorpe and a group of other IPs who had union dues withheld from their wages without their consent and against their will.
In May 2017, however, the Washington State Supreme Court ruled inexplicably in Thorpe v. Inslee that the unauthorized seizures were permitted by state law. The court did not examine whether the practice was permitted under federal law or the U.S. Constitution.
The September 2017 announcement that the U.S. Supreme Court would hear Janus v. AFSCME — a case in which Illinois state employee Mark Janus argued it was unconstitutional for him to be forced to financially support a union against his will — provided another opportunity to challenge SEIU 775’s unauthorized dues seizures.
In an amicus brief field on Janus’ behalf, the Freedom Foundation documented how SEIU 775 and Gov. Inslee had interpreted the Supreme Court’s prior decision in Harris as permitting the continued seizure of dues from IPs’ wages without permission. The Freedom Foundation asked the Supreme Court to not only rule in Janus’ favor, but to also clarify that “government employers and unions should have to obtain workers’ prior, affirmative consent to seize union dues from their wages.”
Thankfully, the Supreme Court heeded this advice. The majority decision in Janus, issued on June 27, 2018, provided:
“Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”
At the time Janus was decided, the Freedom Foundation was already working on filing a class action lawsuit in federal court against SEIU 775 and Gov. Inslee to stop the unauthorized seizures from IPs’ pay. The unequivocal language in Janus only strengthened the case, which was filed in July.
In an MOU executed on Aug. 3 modifying the dues deduction process in the CBA, the state and union removed the language requiring the automatic deductions. Instead, the state will now only collect dues from IPs’ wages “upon proper authorization by a home care worker.”
If enforced as written, the change represents a long-overdue end to this illegal and abusive practice, but it does not settle all the questions in the federal lawsuit. Particularly, the Freedom Foundation will continue to work to ensure the thousands of IPs exploited by SEIU 775 and the state are made whole.
While an important victory, SEIU 775 and the state continue to employ many coercive practices designed to keep IPs’ paying union dues against their will.
The state still allows union organizers to pressure, bully and harass IPs into signing up for membership in captive-audience settings. In fact, the same MOU that rescinded the opt-out requirement doubled from 15 to 30 minutes the length of the first captive -audience session at new IPs’ contracting appointments with the Department of Social and Health Services.
SEIU 775 still prevents IPs who have signed membership forms from cancelling their dues deductions outside an arbitrary 15-day escape period each year.
And the state is still on track to, on paper anyway, turn IPs’ into private-sector employees by 2020 on the theory that doing so will remove them from the protection of Harris and permit SEIU 775 to force all IPs to again pay union dues or fees.
Nevertheless, the Freedom Foundation continues to push back against each of these exploitative and self-serving practices, and the end of automatic dues deductions represents a welcome step in the right direction.