Minnesota Personal Care Workers Vote to Unionize

September 9, 2014 04:17 PM

On August 26, 27,000 personal care workers in Minnesota voted to join the Service Employees International Union (SEIU), or SEIU Healthcare Minnesota. While only 5,872 of the 27,000 eligible to vote did so, 60 percent of the 5,872 (3,543) voted to join the union. There are a total of 109,000 personal care workers in Minnesota.

According to the Wall Street Journal, SEIU now “represents 600,000 home-care workers in about 20 states, nearly a third of its 1.9 million members.” As described below, this organization of home care workers in Minnesota is based on a consumer-directed model of care.

For the full story, click herehere, and here.

Legal Challenge

The recent vote comes in the midst of an ongoing legal battle. On July 28, the National Right to Work Foundation filed a lawsuit, Bierman et al v. Dayton et al, in the United States District Court of Minnesota on behalf of nine home care workers which tried to stop the union vote. On August 20, the Court ruled that the Plaintiff’s lawsuit was “premature” given that the vote had not yet occurred, but stated that the Plaintiffs could renew their challenge if and when the vote made SEIU the exclusive representative. On August 27, following the voting results to that effect, the Plaintiffs re-filed their lawsuit. On August 28, the Court stated that it will make a ruling on the case. It gave the Defendants until September 10 to file a response to the re-filed lawsuit, and gave the Plaintiffs seven days following this filing to produce a reply brief.

Mark Mix, the president of the National Right to Work Foundation, vowed to continue its legal challenge to unionization in the state. Mr. Mix called the result of the recent vote a product of a “tyranny of a small majority.” He also stated that “No one is opposing the right of individual home-care providers to freely associate with the union if they so choose, but the issue raised in this legal challenge is whether those individuals who don’t want anything to do with the union can have it imposed on them.”

Facts as Alleged in the Complaint

As Plaintiffs state in the July Complaint and the August Amended Complaint, Minnesota provides Medicaid home care through four programs relevant to the lawsuit: 1) Community First Services and Supports Program (a program that is still under development); 2) Consumer Directed Community Supports Program; 3) Consumer Support Grant Program; and 4) Personal Care Assistance Choice Program. All four of these programs are governed by a consumer-directed model of care where Medicaid enrollees hire an “Individual Provider” that by statute, “does not include an employee of a provider agency, subject to the agency’s direction and control commensurate with agency employee status.” The Plaintiffs allege that there are approximately 26,000 such Individual Providers in Minnesota, including the Plaintiffs.

According to a law signed by Governor Dayton in May 2013, Individual Providers are state employees just for purposes of unionization. Under this law, the State must certify an “exclusive representative” for the Individual Providers based on a vote.  The exclusive representative then has the right to “meet and negotiate” with the State on behalf of the Individual Providers in relation to “compensation rates, payment terms and practices, and any benefit terms,” as well as “other appropriate terms and conditions of employment governing the workforce of individual providers.” The personal care workers voted to make SEIU their exclusive representative.

The Plaintiffs reject SEIU as their exclusive representative, and want to preserve their right to choose their own representative. Additionally, the Plaintiffs do not want to be forced to pay dues to SEIU. In the Complaint, Plaintiffs charge that the exclusive representative violates their First Amendment right to freely associate, and seek declaratory judgment and injunctive relief to prevent enforcement of the law passed by Governor Dayton.

For the full Complaint and Amended Complaint, click here and here.

Analysis

Many groups such as the SEIU have accelerated the unionization of personal care workers in Minnesota and other states.  The primary approach taken by these unions is to push state Medicaid programs towards “individual providers” and a consumer-directed model of care, which excludes agency-model care delivery, and establishes a “public authority” employer for the personal care aides. This approach then facilitates the unionization of these workers.

A consequence of unions pushing exclusively for a consumer-directed care model is to exclude individuals who cannot manage that model of care from receiving home care. Such recipients are generally denied the opportunity to use services from a home care agency that offers a combination of trained workers, quality oversight, and caregiver replacement when the assigned aide is unavailable to provide care.

The National Council on Medicaid Home Care – a NAHC affiliate - opposes arrangements by unions that limit the employment rights and options of workers and service rights and options of consumers.  See page 36-37 of our 2014 Policy Blueprint, here.

Home health providers are encouraged to keep abreast of federal and state efforts on behalf of employee unions, and to contact the Council with any questions or concerns. The Council urges home care and hospice advocates to ask their Members of Congress to oppose proposals that would negatively impact their ability to deliver care to those who wish to utilize their organization’s services. 

 

 

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