Caregivers sue state over ‘false’ public employee classification

The Service Employees International Union succeeded in its effort to unionize home health care providers early in October, but the Mackinac Center for Public Policy argues in an ongoing lawsuit that classifying home care providers as state employees in the first place is not legal.

This is the second time in this century the SEIU has installed its dues skim with a tiny fraction of votes among the total available labor force. There are 32,000 home health care providers in the state. There were only 5,527 valid ballots cast on the matter of unionization, with 4,205 votes in favor. Another 1,502 providers voted against the effort, according to the Michigan Employment Relations Commission.

Under a previous dues skim the SEIU ran from 2005 through 2012, home health care providers were forced to pay $34 million in union dues that bought them essentially nothing. Most home care providers are family members who receive a government stipend intended to defray the out-of-pocket costs of caring for their loved ones in the home. The SEIU’s claim was that receiving this public subsidy made home care providers public employees subject to unionization.

At the time, the Mackinac Center dubbed the practice a “dues skim,” reflecting that the organizing effort went through without the consent, and in many cases without the knowledge, of the vast majority of home care providers in the state, allowing the SEIU to take a portion of their checks.

In exchange, home care providers do not even receive standard union representation. Compensation is decided legislatively at the federal and state levels, so there is no process of bargaining in which SEIU could potentially win better compensation for members.

The practice drew widespread condemnation when the Mackinac Center brought it to light early in the previous decade. But the SEIU refused to accept defeat after the Legislature ended the practice. The union struck back with a 2012 ballot initiative that failed by a 56% to 44% vote. Following that failure, SEIU used various means to keep alive the idea that home care workers are employees of the government.

The union got its second chance last year, when the Democratic trifecta under Gov. Gretchen Whitmer quietly enacted laws classifying home care workers as public employees and opening caregivers’ personal records to the union. As happened in 2005, the SEIU got its win, but with a very small vote.

But the vote might not matter, according to Derk Wilcox, senior attorney at the Mackinac Center.

“What the Legislature has done here, is illegally tried to create a new form of public employment simply based on the fact that they receive a stipend from the government,” he said.

To do this, Wilcox explained, advocates of the union tried to do an end run around the Michigan Constitution, claiming that these are employees of the state but not subject to the Michigan Civil Service Commission.

Wilcox noted the home care providers are only considered state employees for the purpose of joining a union and paying union dues.

He added that by law, the union cannot bargain for wages or working conditions.

The Mackinac Center filed a lawsuit July 30 on behalf of Tammy Martin and Dick Sullivan, who provide home care for their children. The suit was filed in the Michigan Court of Claims against the Michigan Employment Relations Commission and the Department of Labor and Economic Opportunity.

The commission and labor department did not respond to requests for comment.

The Mackinac Center argues that caregivers’ constitutional rights are being violated by the agencies’ misclassification.

“I didn’t ask for a union, and I don’t need one,” Dick Sullivan, told the Mackinac Center.

He added that he needs freedom to care for his son without being forced into a system that doesn’t understand his situation.

Tammy Martin agreed. She said caring for her son isn’t a job — it’s her life.

“The state can’t just pretend I’m a government employee to justify handing me over to a union who doesn’t have any power to affect my rights.”