A class action lawsuit filed against Washington state and the Service Employees International Union seeks damages on behalf of potentially thousands of state-subsidized inhome caregivers, arguing that the state and the union conspired to divert subsidy money from caregivers who had no intention of joining SEIU.
The lawsuit was filed Tuesday and comes in the wake of a Supreme Court’s ruling last week in Janus v. American Federation of State, County and Municipal Employees that found that compelling public sector workers to join unions was unconstitutional.
The lawsuit was filed by the free market Freedom Foundation on behalf of four caregivers but seeks class certification to represent all people who were part of the state’s subsidy program and had a 3.2 percent deduction placed on their checks, ostensibly to pay for collective bargaining by SEIU Local 775, which the state made the workers’ sole representative. The workers could opt out of making the payment, but the burden to do it was on them, and the lawsuit alleges that the state and union purposefully obscured this requirement.
“The state of Washington to our knowledge has not taken any action whatsoever to alert the caregivers to their First Amendment rights to refrain from supporting SEIU,” said Maxford Nelson, the foundation’s director of labor policy. SEIU does send caregivers letters acknowledging they do not have to join the union, Nelson said, but it doesn’t tell them everything.
“A lot of folks are under the assumption that if they don’t sign up for union membership no money will be taken from their pay… They don’t realize that even if they don’t sign up for union dues will still be withheld from their pay and they have to affirmatively opt-out to stop the payments.”
That system would appear to be unconstitutional under the Janus ruling, which said that funds can only taken from public sector workers with their affirmative consent. The same week the Supreme Court issued Janus the justices also invalidated a 7th Circuit Court ruling denying class action certification in a case called Riffey v. Rauner, which involved non-union state-subsidized Illinois home healthcare workers seeking to be repaid the funds they were forced to pay to a union. The justices told the appeals court to reconsider allowing class certification in light of Janus, leaving open the question of whether such lawsuits are permissible.
SEIU and other unions like AFSCME have sought for years to organize inhome caregivers in states across the nation. Most states have programs, typically funded at least in part by Medicaid, that pay people subsidies to take care of invalids, many of whom are the caregivers’ family members, in their homes. Unions have had Democratic allies in governors’ offices and statehouse declare the caregivers to be state employees, which allows the state to then enter into a contract with unions to represent the caregivers.
The Supreme Court declared in the 2014 case Harris v. Quinn that homecare workers in Illinois were not state employees and therefore could not be organized. Since then, unions in other states have typically allowed the caregivers to opt out of membership if they request it rather than risk a lawsuit invoking the Harris v. Quinn decision. But the unions have done little to alert the caregivers to these options. Democratic Gov. Jay Inslee signed a union-backed law in March that requires employers to automatically deduct union fair share fees from worker paychecks regardless of whether the workers themselves authorize it. The workers would have to opt out in writing.
The Foundation’s lawsuit alleges that Inslee and SEIU Local 775 “conspired to deny plaintiffs and class members of their First Amendment rights by deducting union dues from plaintiffs’ and class members’ wages without their clear, prior, affirmative consent.” Nelson said it was unclear exactly how much money is at stake should class certification be granted because because it is unclear how many people would qualify under it.
Representatives for Inslee and SEIU Local 775 could not be reached for comment.
