As unions rapidly declined in the last decade, the big organizing victories of home health care and then home childcare workers gave hope for revitalizing a section of the labor movement, based on the mobilization of poor women of color. Seventy-four thousand California home attendants voted to join the Service Employees (SEIU) in 1999.

Since then, home care workers have become a quarter of SEIU’s 1.8 million members. While their unionization of home-based childcare workers is less dramatic, AFSCME, UAW, AFT, and others have succeeded in Illinois, Oregon, Wisconsin, New York, and elsewhere.

These women, the front line of a growing care work economy, aid those who need assistance with everyday activities such as bathing, brushing teeth, dressing, cooking, and cleaning. They ensure that people can remain in their own homes despite chronic illness and disability. They enable other women to go out to work.

Now the National Right to Work Legal Defense Foundation (NRWLDF) has challenged the union representation of these home-based workers. This long-time foe of unionization denies their status as workers and attempts to shift the legal grounds of argument from employment law to First Amendment rights.

In two suits filed this spring in Illinois and Michigan, the NRWLDF seeks to dislodge state executive orders and legislative mandates that allow collective bargaining for home childcare and health care providers who are paid by the state.

Its lawyers put a new spin on classic anti-union and right-to-work propaganda by ignoring the legal, political, and social history of how governments have constructed such jobs in the first place. If successful, these suits would call into question the legal basis for collective bargaining for these workers—and perhaps for some other types of public employees and for the increasing number of service sector laborers who bridge public and private worlds of work.

Three Claims

These union-busting cases make three interlocking claims: First, by opening the door to unionization through political means, states have 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 employer-employee relationship between the providers and any employer, and thus such representation has nothing to do with collective bargaining or labor standards.

Third, therefore, the state has no right to authorize unions as the representatives of care workers in negotiations with state oversight authorities.

On the surface, these cases rest on an argument that such workers are independent contractors or self-employed—labels that state governments have used for decades to deny responsibility for paying home care workers the minimum, never mind a living, wage. Childcare providers, for example, work in their own homes and take children in for the day; they are then reimbursed by the state per child.

William L. Messenger, staff attorney for the NRWLDF, writes, “Providers are simply a group of citizens who receive monies from a government program”—they’re not really workers at all!

This argument reflects a couple of problematic ideas: First, that the home is not a real workplace and that care for others, including family members, is not real work. Second, it accepts the category of “employee” found under the National Labor Relations Act and Fair Labor Standards Act, which derives from 80-year-old conceptions of what is work and who is a worker.

These labor laws were written when manufacturing defined work. Our economy has changed; service jobs like home health care have been among the fastest-growing in the nation for the last decade. The opponents of unionism exploit this historical anachronism in order to block unionism from gaining any further foothold in the expanding sectors of the economy.

Ironically, even the plaintiffs admit these jobs are totally dependent on federal and state aid programs. Home health care as an occupation has been shaped for decades by government welfare and health policies.

But labor’s foes want to act as though the state has nothing to do with the employment of such workers, even though the state cuts the check, determines the number of hours that a consumer of home care receives, and determines the eligibility of child care providers.

To say that these workers are not public employees simply denies history. The job of the home health worker was rooted in the public sector beginning with the New Deal. The number of jobs grew after World War II as local public welfare departments employed such women directly to care for the elderly or chronically ill. More became public workers during the Great Society years of the 1960s.

But with the rising public sector union movement of the 1960s and the fiscal crises of the 1970s, governments found ways to deny that the home-based workers were public employees. Their status was kept obscure, especially as the home health industry and its demand for labor began to expand after 1970.

From 1980 onward, since home care services were funded increasingly through stigmatized public welfare programs, states attempted to keep a lid on public budgets by squeezing their workers.

Right to Work propagandists now seek to exploit this long history of worker rights denied.

What makes their job easier is that our country never developed a genuine long-term care program, so home care developed in fits and starts, through a patchwork of policies, programs, and modes of service delivery. Home care has been influenced by competing recipients, such as the disabled or elderly, whose interests haven’t always overlapped with each other or with workers’. Home care has been provided by public welfare departments, private charities, for-profit agencies, state agencies, hospitals, and quasi-public entities. Some states contract through agencies, who hire the workers. Others allow families to hire directly. Some states use both models, as in Illinois.

This means that no clear route to unionization existed. What hasn’t worked are the industrial union model, which assumes all employees labor at the same worksite, and the NLRB representation system, which assumes an unambiguous employer-employee relationship—neither exists for home care.

Courts never were consistent about who actually constituted the home care worker’s boss, ruling alternatively that the state or the client held the employing relationship, which led unions like SEIU and AFSCME by necessity to pursue a political strategy to resolve their employment status.

How Unions Were Won

Unions entered into political coalition with the recipients and users of their services, including parents, disability rights activists, and senior citizen advocates. They mobilized to elect legislators and governors who would agree that better working conditions would enhance the quality of care, and then they lobbied for state legislation and gubernatorial executive orders that would create mechanisms to meet those goals.

The outcome of this long process was a recognition that home-based careworkers were essentially quasi-public employees, paid from public monies, whether Medicaid or SSI for home health aides or welfare monies for childcare providers.

In some states unionization efforts preceded the executive order or legislation by many years. The NRWLD ignores the fact that even though an agreement may have been reached with the governor, it still had to be followed up by a union election. Unionization campaigns and elections took place in California, Oregon, Illinois, New York, Michigan, and elsewhere.

Even after legislation allowed for union representation in California, for example, SEIU had to convince enough workers to sign cards for counties to call elections, and it had to win those elections before any bargaining took place. Forty thousand Michigan childcare workers voted for an AFSCME/UAW partnership in 2006.

In Illinois, a union that had been doing grassroots organizing among care workers for two solid decades had many different types of elections along the way: from small agency NLRB elections in the 1980s to the three-week mail election in 2005 in which 13,484 childcare workers voted to join SEIU. In that election, two unions vied for their votes, AFSCME and SEIU Local 880.

National Right to Work ignores this history of worker involvement in forming their unions. It also denies the nature of public sector unionism.

Precisely because such workers do not always have the right to strike, they have relied upon lobbying, testifying, and representation on state agencies. In the public sector, the function of unions has never been solely collective bargaining. NRWLDF wants to deny that unions should represent workers’ interests in the political realm.

Achilles Heel

The NRWLDF has, however, identified an Achilles heel of the organizing model established by SEIU and copied by other unions. Deals at the top are vulnerable. Workers themselves have to be able to build the union. Top leadership cannot take shortcuts. The sector and the work are insecure and unstable, with constant turnover.

There has to be a social depth and culture of the union that enables it to live on when workers move in and out, or the political deals fall apart, and that sustains political activism at the state house where the budget and wages take shape.

The initial breakthroughs in this type of organizing occurred after many years of on-the-ground mobilization, as with the old SEIU Local 250 in the Bay Area (whose leadership now composes the National Union of Healthcare Workers [5]) and the former SEIU 880 [6] in Illinois.

Union gains also remain insecure as long the Department of Labor and Congress allow the continuing fiction that care workers are some sort of companion rather than a worker, a notion reinforced in 2007 by the Supreme Court in Evelyn Coke v. Long Island Home Care. That ruling upheld workers’ removal from the Fair Labor Standards Act and its minimum wage and overtime protections.

It is difficult to predict the outcome of this year’s suits, given the conservative courts, but in Illinois, existing legislation has codified the original executive order. In states like Michigan that rely on a governor’s order alone, courts could play havoc with worker rights.

Eileen Boris and Jennifer Klein are the authors of Caring for America: Home Health Workers in the Shadow of the Welfare State, forthcoming from Oxford University Press.

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