Bierman v. Dayton

January 16, 2019 • Legal Briefs

Parents do not give up their First Amendment Rights to associate because their child is on Medicaid. In Bierman v. Dayton, Cato is supporting a petition to the Supreme Court to defend the First Amendment right of association for parents and others acting as caretakers under Minnesota’s Medicaid program.

Minnesota expanded its Public Employee Labor Relations Act (“PELRA”) to cover in‐​home Medicaid caretakers. Often, Medicaid caretakers are parents or loved‐​ones who live and work in the same home as the Medicaid recipient. While the recipient of the Medicaid funds is technically the real employer, Minnesota designated the private workers as “public employees” solely for the purposes of constraining their negotiating rights. Under PERLA, public employees may petition by majority vote to unionize. If successful, the union has exclusive bargaining rights with the government over employment terms. Parents and other caretakers may choose not to join the union, but they may not negotiate with the government themselves. By forcing caretakers to accept the union’s positions and negotiations with the government, they are denied the right to freely associate or disassociate with the union.

The Eighth Circuit absolved Minnesota of having to demonstrate any justification for the abrogation of the rights of workers who are not hired, maintained, or supervised by the state, who do not labor in state facilities, and who the state does not consider to be its employees for any other purpose. In Abood v. Detroit Board of Education, the Supreme Court upheld state‐​compelled association with an exclusive representative, but last term, in Janus v. AFSCME, the Court overruledAbood as an infringement on the right of workers not to be compelled to support public‐​sector unions. While Janus was about forcing non‐​union members to financially support unions, forcing non‐​members to negotiate through an exclusive representative also violates the First Amendment rights of non‐​consenting workers.

We argue that, at the very least, the Court should not rubber stamp forced associations without scrutinizing whether the government has offered a compelling reason for denying workers the freedom of association. Governments often claim that exclusive representation helps create “efficiency” in negotiations, or that it promotes the more nebulous concept of “labor peace” (for example, not having competing unions fighting with each other), but such justifications shouldn’t be accepted without scrutiny. We also point out that forcibly unionizing home health‐​care workers has become a popular trend in the states over the past 10–15 years. The Court should take the case to establish limits on forced association before more workers and recipients of government aid are pushed into exclusive representation agreements. 

About the Authors
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.

Trevor Burrus

Research Fellow, Robert A. Levy Center for Constitutional Studies