This morning, the U.S. Supreme Court held that personal care assistants who are paid by the state of Illinois—but mostly supervised by the homecare recipients they serve—are not “full-fledged” public employees. As a result, these employees cannot be forced to pay union dues or fees.
In a 5-4 decision, the majority ruled that requiring personal care assistants to pay union dues would violate the First Amendment rights of nonmembers who disagree with the positions that unions take.
The Court noted that these assistants are “different from full-fledged public employees,” because they work primarily for their disabled client, and do not receive the same benefits as regular state employees.
This decision deals a considerable blow to organized labor. Unions are losing members—and, in turn, the dues and fees provided by said members—at an astonishing rate. Had the court ruled in their favor, public-sector unions would have had access to 26,000 new members—and their wallets. And given that nine other states, including Connecticut, allow personal care assistants to join unions, the impact will be felt far beyond Illinois.
In making its decision, the court refused to overturn Abood v. Detroit Board of Education, a 1977 Supreme Court cases that requires “full-fledged” public employees to pay dues, even if they are not members of the union. Justice Alito, writing for the majority, noted that:
Abood itself has clear boundaries; it applies to public employees. Extending those boundaries to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems…If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line, and we therefore confine Abood’s reach to full-fledged state employees.
However, labor unions will likely emphasize that the ruling stressed the unique nature of the personal care assistant:
PAs are much different from public employees. Unlike full-fledged public employees, PAs are almost entirely answerable to the customers and not to the State, do not enjoy most of the rights and benefits that inure to state employees, and are not indemnified by the State for claims against them arising from actions taken during the course of their employment. Even the scope of collective bargaining on their behalf is sharply limited.
Bottom Line for Employers:
Look for this decision to trigger a battle over the definition of “full-fledged public employees,” as well as a renewed organizing push from public sector unions.Read More
While this week marks the unofficial start of spring training for Major League Baseball, last week marked the official opening for the 2012 State of Connecticut legislative session. At the top of Governor Dannel P. Malloy’s legislative agenda is education reform. However, as part of his State of the State address to the General Assembly, Governor Malloy surprised union leaders with his call to revamp the teacher tenure process. he Governor described the current teacher tenure system by saying “all you have to do is show up for four years.”
Sharon Palmer, President of the American Federation of Teachers Connecticut, was quoted as saying she thought Malloy’s characterization “was a bit harsh and incorrect, but I think we can work our way through it.”
Presently, for teachers to attain tenure, they need to complete forty school months of full-time continuous employment for the same board of education, provided the superintendent offers the teacher a contact to return for the following school year. (C.G.S.A. § 10-151). Once the teacher is tenured, they are entitled to a property right in their position for due process purposes and thus, it makes it extremely difficult for a board of education to dismiss a tenured teacher. Under the Teacher Tenure Act, a tenured teacher can only be terminated for the following reasons:
- Insubordination against reasonable rules of the board of education
- Moral misconduct
- Elimination of the position to which teacher was appointed
- Other sufficient cause
Tenured teachers are not at-will employees because of an affirmative decision of the legislature in enacting the Teacher Tenure Act to protect classroom teachers and administrators below the rank of superintendent from the threat of arbitrary discharge. Cimochawski v. Hartford Public Schools (2002), 802 A.2d 800, 261 Conn. 287. By invoking these protections, the Connecticut legislature has made it extremely difficult to terminate an underperforming teacher. Not only is the standard of “incompetence” a burdensome standard to meet, the termination process is expensive and time-consuming, as teachers are entitled to notice, a hearing before the board of education and appeal rights to the Connecticut Superior Court.
Under Malloy’s proposal, “tenure will have to be earned and re-earned” by meeting certain objective performance standards which would include student achievement, school performance and parent and peer reviews. Malloy would like to see the law changed so that a teacher could be dismissed for “ineffective” performance rather than for “incompetence.”
The Governor should be commended for proposing such reforms to the Teacher Tenure Act especially since one of his primary constituent supporters has been labor unions. However, given the current configuration of both chambers of the Connecticut General Assembly, is it realistic to believe that real reform to teacher tenure can be enacted? Certainly, there will be much hesitancy from the Connecticut teacher unions to reform the current system. It will be interesting to see if the Governor’s opening day surprise can garner enough bipartisan support to achieve meaningful reform.
Bottom Line for Educators
If Governor Malloy is successful in enacting legislation to reform the teacher tenure act by lessening the standards for teacher dismissals and limiting teacher’s due process rights, such change would be welcomed by all boards of education.Read More