Build Back Better’s $1.5 billion Gift to Unions

Hidden in the Biden administration’s Build Back Better plan is a provision that amounts to a $1.5 billion gift to unions. It is intended to circumvent a recent Supreme Court ruling that protected the rights of individual home health care workers to keep from having the Medicaid funds used to support them from being diverted to unions.

The workers in question are people who provide care services to the elderly or disabled outside of a hospital or assisted-living community. Most workers receive payment from the state, which in turn gets the funding from Medicaid grants. Statistics about these caregivers are hard to find but, anecdotally, they are a mix of health care professionals and people taking care of a parent child or other family member in their own home.

Section 22302 of the Build Back Better legislation provides $1.5 billion in grants to eligible organizations to assist states with their home health care programs. The entities’ duties would include, among other activities:

  • Developing strategies to recruit and retain workers, with “mentoring” provided as the sole example.
  • Informing those workers up their “applicable rights under federal, state, and local employment law” including “forming, joining, or assisting a labor organization.”
  • Conferring with “labor or joint labor-management organizations, or advocacy organizations, representing direct care workers served by the grant.”

In short, the grants would pay somebody to round up the caregivers and lecture them on why they should belong to a union. The entities eligible to receive these funds are not clearly defined in the legislation, but unions would obviously fit the bill. The part about “conferring” with a labor organization would allow nonprofit entities created by unions or union-allied activist groups to also qualify.

This is tied to a broader effort by over the last two decades by unions, including the Service Employees International Union (SEIU) and American Federation of State, County, and Municipal Employees, to convince friendly governors to declare the home health care workers to be state employees. This allows the state, as the worker’s employer, to declare the union to be the workers’ collective bargaining representative. States including Washington, Oregon, California, Minnesota, Illinois, Connecticut, Massachusetts, and Vermont have done this.

Supposedly, this to help the workers negotiate better pay, but it also means that the state can divert money from the workers’ paychecks directly to the union as membership dues. Many of those workers are just getting checks from the state to subsidize taking care of an elderly parent or disabled child at home, and may not be aware that this was being done on their behalf.

It’s a lot of money, too. The nonprofit Freedom Foundation estimates that the two unions representing caregivers in California’s In-Home Supportive Services program received $115.6 million in dues funds in 2020, based on the unions’ disclosure filings with the Department of Labor. All of this was automatically excluded from the workers’ payments and redirected to the unions.

One particularly stubborn home health care worker in Illinois by the name of Pamela Harris realized a decade ago what was going on and organized home care workers against having to join a union, eventually winning a vote where they chose “none of the above” in a mail-in election. After then-Governor Pat Quinn indicated the state would continue to hold elections until the union won anyway, Harris fought all of the way to the Supreme Court and won again. The Court ruled in 2014 in Harris V. Quinn that home health care workers were not state employees and therefore the state could not sign a collective bargaining agreement on their behalf.

The unions and their allies did not accept this defeat either. Washington Governor Jay Inslee signed a law in 2018 requiring the state to create a private company to manage home care workers. The homecare workers became employees of this private company, which signed a contract with SEIU and began redirecting a cut of the workers’ checks to the union.

Build Back Better’s grants to $1.5 billion entities that would consult with unions seems like an attempt to replicate Illinois’ response to Harris v. Quinn nationwide.

Opinion