Non-union home care providers who for years had fees, worth an estimated $32 million, illegally and unconstitutionally taken by the state of Illinois and funneled to a union should not be allowed to bring a class action against that union to get their money back, because courts can’t determine how many of those caregivers may have actually supported the union, a federal appeals court has ruled.

On Oct. 11, a three-judge panel of the U.S. Seventh Circuit Court of Appeals upheld the decision of a Chicago federal court judge to deny the certification of a class action brought against the Service Employees International Union on behalf of nearly 80,000 in-home personal care assistants, who had been paid through state subsidies provided to cover the costs of their work to aid Illinois residents with disabilities.

For six years, from 2008-2014, Illinois used a state law to declare the home caregivers state employees, declared SEIU their official bargaining representative and then compelled them to pay so-called “fair share fees” to SEIU, should they not opt to formally join the union.

That regime was struck down by the U.S. Supreme Court in 2014, when the high court declared in the case of Harris v. Quinn such compulsory fees to be unconstitutional infringement on the First Amendment speech and association rights of home caregivers and child care providers who are not on the state payroll, and did not ask to be represented by any union.

Following that decision, some of these caregivers and others brought class action lawsuits, asking the courts to order SEIU to refund the years-worth of deductions withdrawn without their consent from their state-issued checks.

In 2016, however, U.S. District Judge Manish Shah refused to allow class actions to proceed either on behalf of the in-home caregivers or child care providers.

In June 2016, Judge Shah shot down a request for class certification in a case brought on behalf of the state’s home care assistants by named plaintiffs Theresa Riffey, Susan Watts and Stephanie Yencer-Price. While conceding the pay deductions were improperly authorized under an unconstitutional state law, the judge said the class of additional plaintiffs sought by the plaintiffs was too broad, noting many of the people who could have been included in the proposed class, and thus, potentially eligible for fair share fee refunds, may include people who either supported the union or would have willingly forked over the fees, even if it were not compulsory.

Since the court couldn’t decipher, at this point, who opposed the union – or at least, who objected to the collection of fees – and who did not, Judge Shah said the class action could not proceed.

In a similar ruling later in 2016, Shah also denied the request of a group of childcare providers, who also sought a refund of the fair-share fees improperly deducted from their checks. In that ruling, the judge said the SEIU could be entitled to hold the millions of dollars in fees it had improperly collected for nine years because the union collected the fees “in good faith,” relying on the state law in place at the time.

Both decisions were appealed to the Seventh Circuit.

The childcare providers’ appeal was voluntarily dismissed in August. No explanation was provided in the court docket for the withdrawal, and a lawyer identified in the court docket as lead attorney for the plaintiffs in that case did not reply to a request for comment from The Cook County Record before this article was published.

In the home care assistants’ case, however, the Seventh Circuit panel also sided with the union, finding Shah did nothing improper in denying the request to certify the class requested by the plaintiffs.

The appellate decision was authored by Seventh Circuit Chief Judge Diane P. Wood, with Judge David F. Hamilton concurring.

 In the opinion, Wood said the situations of all 80,000 proposed class members are too different and too uncertain to allow the case to go forward.

“We agree with the district court that the question whether damages are owed for many, if not most, of the proposed class members can be resolved only after a highly individualized inquiry,” Wood wrote. “It would require exploration of not only each person’s support (or lack thereof) for the Union, but also to what extent the non-supporters were actually injured. The Union would be entitled to litigate individual defenses against each member.

“This suggests not only that individual questions predominate at this stage of the litigation, but also that it would be difficult to manage the litigation as a class.”

As Shah did, Wood also noted SEIU presented sworn statements from dozens of home care workers, asserting they supported the union. Additionally, she noted a majority of care workers voted for union representation in 2003, and then ratified collective bargaining agreements in 2008 and 2012. Further, she said, “65 percent of the proposed class members who are still personal assistants have since joined the union.”

“This case has always been about the decision whether to support collective bargaining representation and pay the fair-share fee, and the personal assistants were never asked to express a preference on that point,” Wood wrote. “… We have no way of knowing which of three choices they might have made, had Harris been on the books during the entire time: join the union; voluntarily pay fair-share fees; or pay nothing…

“It was a reasonable inference from those facts that a significant number of class members would indeed have chosen the first or second option, had they realized the need to do so.”

The third member of the judicial panel, Circuit Judge Daniel A. Manion, said he agreed with the final judgment upholding Shah’s class certification denial. But in a special concurrence Manion took issue with some of the reasoning his colleagues and Shah used to arrive at the decision.

He said the evidence indicates all of the care assistants, whether they ultimately supported SEIU or not, suffered “a compensable injury,” when the union simply took the fees, while “depriving non-members of the choice whether to pay the fee in the first place.”

“Judges cannot assume that home care providers who declined to join SEIU wanted to give up their right not to pay the fair-share fees when those providers were not given an opportunity to object,” Manion said.

However, Manion said he also believed a class action can’t proceed in this case, because in this case, he believed, the burden should be on individual care providers to sue the union to demand refunds of the unconstitutionally collected fees.

“The individual non-union members might prefer a class action, but they have all the incentive in the world to pursue their individual claims and should not have any trouble finding attorneys to help them in a case where the merits have mostly been decided and fees are recoverable,” Manion wrote.

The plaintiffs in the case were represented by attorney Anastas Shkurti, of the firm of Veverka, Rosen & Haugh, of Chicago; attorney Michael Austin Haugh, of Glenview; and attorneys with the National Right to Work Legal Defense Foundation, of Springfield, Va.

Defendant SEIU Healthcare of Illinois & Indiana was defended by attorneys with the firms of Altshuler Beron LLP, of Chicago, and Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, of Chicago.

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Organizations in this Story

Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich
8 South Michigan Avenue
Chicago, IL - 60603

U.S. Court of Appeals for the Seventh Circuit
219 S Dearborn St
Chicago, IL - 60604

U.S. District Court for the Northern District of Illinois
219 S Dearborn St
Chicago, IL - 60604

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