Overview of Homecare Collective Bargaining

I. Historical overview and summary of bargaining accomplishments

Efforts to organize consumer-employed Medicaid homecare providers date from mid-1980s campaigns in Illinois and Los Angeles by predecessors to SEIU HCII and ULTCW (Locals 880 and 434B (later 6434), respectively). See generally Keith Kelleher, Growth of a Modern Union Local: A People’s History of SEIU Local 880, 12 Just Labour: A Canadian J. of Work & Soc’y, Spring 2008[1]; Henry Weinstein, Union Claims ‘Victory’ in Fight for Home Care Workers, L.A. Times, May 22, 1988.[2] The first opportunity for recognition and real bargaining came in California in the mid-1990s, when the legislature gave counties authority and funding to establish “public authorities” to manage their widely dispersed consumer-employed provider workforces. After a number of counties did so—with union recognition and improvements in labor standards following shortly behind—the legislature in 1999 mandated that all counties take on similar responsibilities related to the provider workforce by 2003.

In the 2000s, the IP organizing model spread not only throughout the rest of California’s counties, but also began to take hold in other states. Oregon voters approved a ballot initiative to create a statewide version of California’s county-based public authorities, and Washington voters followed suit in 2001. In 2003, the Illinois legislature recognized its IPs as employees of the state for the purposes of bargaining over the various terms and conditions of their employment set by the state, and the Massachusetts legislature did the same in 2006. As discussed in more detail below, the well–established bargaining relationships in each of these five states (California, Oregon, Washington, Illinois, and Massachusetts) have led to significant improvements in labor standards not only in the form of higher wages, but also through the establishment of basic benefits such as health insurance and paid time off and through increased access to training and other career development opportunities.

Building on these successful examples, five additional states have since adopted similar approaches to developing their IP workforces: Maryland (2007 Executive Order and 2010 statute); Missouri (2008 voter initiative); Connecticut (2011 Executive Order and 2012 statute); Vermont (2013 legislation); and Minnesota (2013 legislation). Unions have won representation and are currently bargaining contracts in four of these five states.  In Minnesota, various structural changes to the home care program are in the process of implementation, and no union has yet sought representation under the new law.

In addition to making progress in the fight against poverty-level wages, the established bargaining relationships in California, Oregon, Washington, Illinois, and Massachusetts have led to numerous significant gains for the IP workforces in these states. Examples include:

·       Healthcare—four of the five states with current contracts (all but Massachusetts) provide some form of state-funded health insurance for providers;

·       Training—all five states have succeeded in making some form of training available, either on a voluntary basis (paid or unpaid) or as a mandatory employment requirement for which providers are paid to attend;

·       PTO—Oregon, Washington, and Massachusetts all provide some form of paid time off;

·       Grievance process—all contracts provide for a grievance process, which have been used primarily to resolve payroll-related problems but have also addressed other issues including disputes over eligibility for work in state programs;

·       Career advancement—Local 775 has led the way in creating a wage scale that helps to stabilize the workforce and improve the quality of services by rewarding experience and advanced training;

·       Health and safety—a number of states now provide items such as gloves, masks, disinfectant wipes, and hand sanitizer to providers;

·       Transportation benefits/reimbursement—at least two California counties provide public transit benefits, while Washington and Oregon reimburse providers for personal vehicle use when transporting consumers;

·       Labor-management cooperation—a number of contracts create either standing labor-management committees or issue-specific joint committees to address workforce issues;

·       Registries—a number of contracts require registries operated by the state to make referrals based on seniority or experience (after accounting for consumer preferences such as language), while others establish a procedure for providers to contest their removal from a registry.

II.             State-by-state look at IP collective bargaining

California

History and statutory basis for bargaining

The first step toward collective bargaining for providers in the California In-Home Supportive Services (“IHSS”) program was SB 485 (Ch. 722, 1992), which added Section 12301.6 to the Welfare and Institutions Code authorizing counties to establish public authorities to coordinate the delivery of IHSS services. SB 35 (Ch. 206, 1993) provided a state funding mechanism for the creation of such authorities. Seven counties used these enactments to create public authorities between 1993 and 1999, starting with Alameda and San Mateo counties in 1993 and continuing with San Francisco, Santa Clara, Contra Costa, Los Angeles, and Monterey. See Adult Programs Branch, Cal. Dep’t of Social Servs., Report to the Legislature: Implementing Public Authorities and Nonprofit Consortia to Deliver In-Home Supportive Services 9–35 (July 2003).[3]

SEIU won a representation election and was certified as the bargaining representative of IHSS workers in Alameda County in 1994, followed by San Francisco in 1996, and secured first contracts in each county in 1997. See Linda Delp & Katie Quan, Homecare Worker Organizing in California: An Analysis of a Successful Strategy (unpublished) at 16.[4] By the time 74,000 workers in Los Angeles voted to join SEIU in 1999, workers in Contra Costa, Santa Clara, and San Mateo counties had elected SEIU as well. See Nancy Cleeland, Home-Care Workers’ Vote for Union a Landmark for Labor, L.A. Times, Feb. 26, 1999.[5]

The California legislature fully embraced the public authority model in 1999 with AB 1682 (Ch. 90, 1999), which required all counties that had not yet done so to either establish a public authority or adopt one of the alternate methods provided in statute for managing their IHSS workforce. Subsequent legislation, AB 2235 (Ch. 1135, 2002), provided that any county that had not adopted one of the alternatives set out in AB 1682 by January 1, 2003, would be required to become the employer of its IHSS workers.

In the wake of these mandates, all but two of California’s 58 counties established public authorities. See “Who We Are,” Cal. Ass’n of Public Authorities for IHSS (“CAPA”), http://www.capaihss.org/. The five California homecare locals (SEIU Locals ULTCW, UHW, and 521, AFSCME UDW, and the joint SEIU/AFSCME Local CUHW) have now been elected as the representative of IHSS providers in 55 of the 58 counties (53 of the public authority counties and the two non-public authority counties).[6] According to CAPA’s most recent estimate from August 2013, this means that approximately 365,000 providers are now represented for collective bargaining. See CAPA IHSS Wage Benefit Chart, Cal. Ass’n of Public Authorities for IHSS, http://www.capaihss.org/faqs.htm (go to “Becoming an IHSS provider” and click on the link for wages and benefits in your county).[7]

Contract highlights

Wages: IHSS providers—who made only $3.72/hour in Los Angeles when they first started organizing in the 1980s, see Weinstein, supra—now make $12.20/hour in Santa Clara, see 2012 MOU art. 6.1, and at least $10/hour in a number of additional counties. The CAPA IHSS Wage Benefit Chart, supra, collects wage information from each county.

Health Insurance: Many IHSS providers are eligible for health insurance benefits, often including dental and vision. Again, the CAPA IHSS Wage Benefit Chart is a useful compilation of the specifics of coverage, costs, qualification requirements (typically in terms of a minimum number of hours worked in previous months), and limitations (typically no dependent coverage) for each county—click on the “Health & Dental Benefits” tab. Some healthcare coverage in ULTCW and UHW counties is through SEIU healthcare trusts. See, e.g., Alameda 2009 MOU § 17. For another example of a good healthcare coverage provision, see the San Mateo 2012 MOU § 13.2.

Training: A number of MOUs, for example San Mateo 2012 art. 11, § 11.1 and Santa Clara 2012 art. 8, § 8.1, require the public authority to provide free trainings on first aid, CPR, and other relevant topics. These two MOUs also establish job development funds to reimburse providers for tuition and books for courses relevant to the provider’s work. Santa Clara § 8.2; San Mateo § 11.2. At least one MOU provides stipends for attending training sessions arranged by the public authority. See Sutter 2011 MOU § 8 (budgeting $4,000 to provide $20 stipends to providers for each training session attended).

Health and Safety: A number of MOUs require the public authority to make masks, exam gloves, and/or hand sanitizer or disinfectant wipes available to providers at no cost. See, e.g., Solano 2011 MOU § 13(A); Sutter 2011 MOU § 9; Santa Cruz 2009 MOU art. 17.

Transportation Benefits: Locals in at least three counties have been able to bargain for transportation benefits. Santa Clara 2012 MOU art. 7, § 7-1, provides for “Eco passes” (an unlimited pass for the county’s bus and light rail system) for providers on the same terms as passes are available to county employees. San Mateo 2012 MOU art. 13, § 13.1 allocates $2,500/month for reimbursements on a first-come-first-serve basis in the amount of $38.40 to providers who purchase a monthly SamTrans ($48/month at time of MOU), MUNI bus, or Caltrain monthly pass. Alameda 2009 MOU § 14 set up a transportation “lottery” through which $40,000 was distributed quarterly to eligible providers.

Registries: Public authorities are required by statute to operate referral registries. However, locals are able to bargain regarding the operation of these registries. Some MOUs provide that the registry shall refer the most senior providers that meet a recipient’s required qualifications (e.g., training and experience, availability, language). See, e.g., Del Norte 2006 MOU art. XV, § 2; San Bernardino 2013 MOU “Registry Seniority.” These two MOU provisions also provide special dispute resolution processes for provider complaints relating to the referral system. The Los Angeles 2012 MOU is another good example of registry bargaining. See Art. XIV (requiring the registry to give preference to providers with significant homecare experience, including prior registry referrals, and to those who have recently experienced a reduction in hours, as well as creating a complaint resolution process.

Grievance Procedures: Most county MOUs have a grievance process. None of the locals reported using these processes for individual grievances. ULTCW invoked the grievance process in 2012 to seek the full wage increase in bargained for, and UHW the grievance process in Fresno in 2010 to stop a wage cut.

Labor-Management Committees: Most county MOUs establish some version of a labor-management committee to discuss ongoing issues.

PTO: I am not aware of any county MOUs that provide for sick days or other forms of PTO, although in at least one county, San Francisco, the union has negotiated for cash payouts in lieu of paid time off.

Union security and duty of fair representation

California law allows the union to negotiate for a service fee not in excess of dues. Cal. Gov’t Code § 3502.5(a). The employer shall deduct such fee from non-members. Id. § 3508.5(b). In practice, the fee amount charged varies by county, with many but not all county contracts providing for a service fee equal to dues. For example, eight of the ten ULTCW contracts set a service fee equivalent to dues, while one county (Alameda) sets fees at 98% of dues, see 2009 CBA § 7.1, and the final county (Los Angeles) assesses fees on a cents-per-hour-worked basis that exempts non-members working fewer than twenty hours per week from paying service fees and results in those working more than twenty hours paying a sliding amount up to the full amount of dues. See 2012 CBA art. XX.

The Public Employment Relations Board has found an implied duty of fair representation under the Meyers-Milias-Brown Act. See, e.g., Public Employees Union Local 1 (Coleman), PERB Dec. No. 1780-M, 29 PERC 170 (2005).

Oregon

History and statutory basis for bargaining

SEIU Local 503 currently represents approximately 20,000 homecare and personal support workers for purposes of bargaining with the Oregon Home Care Commission. Homecare workers gained bargaining rights under Section 11 of Article XV of the Oregon Constitution, adopted by voters as Measure 99 in 2000. Measure 99 recognized that “the quality of care provided to seniors and people with disabilities is diminished when there is a lack of stability in the workforce which is the result of home care workers receiving low wages, minimal training and benefits” and that “both home care workers and clients receiving home care services would benefit from creating an entity which has the authority to provide, and is held accountable for the quality of services provided in Oregon’s in-home system of long-term care.” See preamble to Measure 99.[8]

Section 11 was implemented by Oregon Revised Statutes (ORS) § 410.595–.625 in 2001, and Local 503 was elected as the representative of approximately 13,000 homecare workers that same year. House Bill 3618 of 2010 extended bargaining rights to personal support workers (“PSWs”) in the state’s developmental disability programs. These workers subsequently voted for representation by Local 503 and became covered by the homecare workers’ CBA in 2012. The union and the Commission have tentatively agreed to, but not yet ratified, a successor agreement (“2013 CBA”) to the most recent (2011) CBA, which expired on June 30, 2013.

Contract highlights

Wages: Under the 2013 CBA, homecare workers will earn $13.00/hour, increasing to $13.75 on January 1, 2015 (PSW rates vary). Art. 14.1.

Career Ladder: Homecare workers who go through additional training for providing “medically driven services and supports” will be eligible for certification as “Enhanced Homecare Workers” through a Commission-approved process. Id. Starting January 1, 2015, such enhanced homecare workers will be paid at $14.75/hour.

PTO: Homecare workers and PCWs are eligible to earn up to 32 hours of paid time off (“PTO”) per year upon meeting a minimum requirement for hours worked. 2013 CBA art. 16.1, § 2. Workers can use accumulated PTO if their consumer is temporarily unavailable for services, or can cash out any unused hours each year or upon leaving the program. Id.

Training: Article 21.1 of the 2013 CBA creates a training committee comprised of representatives from the union, the Commission, and the Department of Human Services. Workers receive a stipend for attending Commission-sponsored training classes equal to their hourly base compensation rate, subject to Commission approval based on available funds. Id. The parties have tentatively agreed to $1.85 million for training for the 2013–15 biennium. 2013 CBA “Statement of Intent—Training.”

Health Insurance: Article 12.1 of the 2011 CBA required the Commission to provide medical, vision, and dental benefits at no premium cost to qualified workers.

Transportation reimbursement: Article 15.1 of the 2011 CBA provides for reimbursement of personal vehicle miles driven for approved non-medical transport of a consumer; for public transportation reimbursement for approved accompanying of a consumer; and that consumers may use money they receive for medical transportation to reimburse homecare workers who provide such transport in their personal vehicles.

Registry: Article 10 of the 2013 CBA governs the operations of the referral registry system by which homecare workers meeting the annual continuing education requirements, see art. 10, § 3, may seek work. It also makes the CBA’s grievance process available to workers who claim they have been wrongly made ineligible for referrals. See id. § 9.

Grievance Process: Article 11 of the 2011 CBA establishes a two-step grievance procedure for disputes over the CBA. The local currently has two step-two (formal) grievance pending—one regarding operation of the registry and one regarding the integration of a certain provider type into the unit. They have also resolved a number of grievances at the information step-one stage over the years. Most relate to payroll issues, most often involving delays in processing timesheets and cutting checks in various locations. There have been a couple complaints related to administrative problems regarding proper credit for accrued PTO and a couple more related to failures on the part of case managers to provide task lists and orientation information prior to the initiation of services.

Union security and duty of fair representation

The union is permitted to negotiate for a fair share fee. See ORS § 243.672(c). By statute, a fair share fee is equivalent to dues unless the parties negotiate differently. Id. § 243.650(18). The 2011 CBA provides for deduction of fair share fees in the amount of dues. CBA art. 7.1, § 3; art. 7.2, § 4. The Oregon Employment Relations Board has recognized a duty of fair representation under the Public Employee Collective Bargaining Act. See Putvinskas v. Sw. Or. Cmty. Coll. Classified Fed’n and Sw. Or. Cmty. Coll., Case No. UP-71-99, 18 PECBR 882, 894–97 (2000).

Washington

History and statutory basis for bargaining

SEIU 775NW currently represents approximately 33,000 individual providers for the purpose of collective bargaining with the Governor, who is the statutorily designated public employer. See Revised Code of Wa. (RCW) 74.39A.270. Individual providers won bargaining rights through Initiative 775, enacted by voters in 2001 to improve the quality of long-term in-home care services and codified at RCW 74.39A.030, -.095, -.220–.300 and RCW 41.56.026.[9]

In 2002, providers overwhelmingly (84% in favor) voted for SEIU (at that time, SEIU Local 6) as the bargaining representative of the unit of approximately 26,000. The parties first CBA was reached in 2003. The current CBA became effective July 1, 2013 and runs through June 30, 2015.

Contract highlights

Wages: The starting hourly rate for a home care aide is currently $10.53/hour (increasing to $11.06 on July 1, 2014), up from $7.18 prior to July 1, 2001. See 2013 CBA Appendix A. For workers with significant experience and advanced training, current rates are up to $14.34/hour (increasing to $15.03 in 2014). Id.

PTO: The union first secured PTO through interest arbitration in its 2005 CBA. Article 12.1 of the current CBA provides for accrual at the rate of one hour of PTO for every 35 hours worked with a cap of 85 hours. Article 12.2 allows providers to use PTO at any time with the consent of their consumer.

Training and peer mentoring: The union has created an extensive training regime through a combination of legislative action and bargaining. As of 2012, most providers are required by statute to complete 75 hours of training within 120 days of being hired. RCW 74.39A.074(1)(a)–(b). Five of these hours, covering program orientation and safety training, must occur prior to beginning to provide services. Id. at (1)(b) & (d). Also as of 2012, most providers are required to complete at least twelve hours of continuing education annually. RCW 74.39A.341(1). Both provisions mandate that providers be compensated for training time. RCW 74.39A.074(3);  id. at .341(5). Both of these requirements were enacted by Initiative 1163 of 2011.

Initiative 1163 also required the state to offer to new providers at least one hour of peer mentoring per week for the first 90 days of employment from an experienced provider who has completed peer mentor training. RCW 74.39A.331. Mentors are paid an additional dollar above their regular pay rate for their mentoring time. 2013 CBA art. 9.2. In addition, Initiative 1163 required the state to offer providers the opportunity to complete up to 70 hours of advanced training. RCW 74.39A.351.

In 2007 the legislature required that all training and peer mentoring for individual providers represented by an exclusive representative be provided through a training partnership, to be administered in part by the union, with contributions from the state to be negotiated through the bargaining process. RCW 74.39A.360. The union established the multiemployer SEIU Healthcare NW Training Partnership and secured initial contributions from the state in 2009. The state currently contributes $0.38 per provider hour worked to the Partnership for basic, continuing, and advanced training and peer mentoring. See CBA art. 16.

The Department of Social and Health Services (“DSHS”) prescribes training requirements through administrative regulations. See Wash. Admin. Code § 388-71-0841 through -1130. These regulations require the Partnership to use DSHS-developed or –approved curriculum, to keep records and report to DSHS as required, and to submit to random audits by the state to review training and instructor qualifications. Id. § 388-71-1081. Officials from DSHS and the Office of Financial Management sit on the Partnership’s Board.

Career Ladder: Local 775 has established a career ladder through a bargained wage scale that rewards both experience and advanced training and certifications. The union first established an experience-based wage scale through interest arbitration under its 2005 CBA. The current wage scale creates eight wage rates depending on a provider’s cumulative career hours, with new providers currently earning $10.53/hour and providers with more than 14,001 career hours earning $13.84. 2013 CBA Appendix A.

In addition to rewarding experience, a 2013 interest arbitration award incorporated into the 2013 CBA creates a $0.25/hour wage differential for providers holding a Home Care Aid, Certified Nursing Assistant, or higher medical certification or license. CBA art. 9.2. Providers who complete advanced training through the Training Partnership beyond that which is required for a Home Care Aid certification earn an additional $0.25/hour premium.

Health Insurance: The union first secured health benefit contributions from the state in 2004. Beginning with the 2005 CBA, these benefits were provided through the SEIU 775 Multiemployer Health Benefits Trust. A 2005 interest arbitration award added state contributions for dental and vision. Under Article 10 of the current CBA, the state contributes $2.60 per provider hour worked, increasing to $2.80 in 2014.

Transportation Reimbursement: The union first won mileage reimbursement through interest arbitration in its 2007 CBA. Article 9.3 of the current CBA provides for mileage reimbursement for personal vehicle use for essential shopping or transportation for medical services as authorized under the consumer’s care plan at the IRS rate for up to 60 miles/month, increasing to 100 miles in 2014.

Retirement Benefits: The union has not yet secured funding for retirement benefits, but the parties have agreed to work together to develop a mechanism for providing such benefits and expressed an intent to do so through a multiemployer trust. See CBA art. 22.

Registry: Article 15.1 of the current CBA mandates that any provider who fulfills background check and training requirements be eligible for inclusion on any registry operated by the state or its contractors. Article 15.2 provides that referrals made from such registry will be based on seniority among those providers who meet a consumer’s other preferences. Article 15.3 creates a “just cause” requirement for removal of a provider from a referral registry, and Article 15.4 makes clear that a provider wishing to contest his or her removal may elect to use either the statutory procedure under RCW 74.39A.250(2) or the CBA’s grievance process.

Grievance Process: Article 8 creates a grievance process for disputes about the CBA.

Union security and duty of fair representation

The union may negotiate for a fair share fee. R.C.W. § 41.56.122(1). Such fee shall be equivalent to dues and deducted by the state. Id. § 41.56.113(1)(b)(i). The current CBA requires a fair share fee. 2013 CBA art. 4.1.

The statute also imposes a duty of fair representation on the union. R.C.W. § 41.56.080; see Allen v. SPOG, 100 Wn.2d 361, 670 P.2d 246 (1983).

Illinois

History and statutory basis for bargaining

Personal assistants (“PAs”) in the Home Services Program selected SEIU HCII as their majority representative through a card check process under Executive Order 8 of 2003 and as the exclusive representative under 20 ILCS § 2405/3, which was amended that same year to allow PAs to bargain with the state under Illinois’ public sector labor statute. The local currently represents approximately 27,000 PAs under a CBA effective July 1, 2012 through June 30, 2015.

Contract highlights

Wages: Personal Assistants currently earn $11.65/hour, increasing to $13.00 on December 1, 2014. 2012 CBA art. VII, § 1. This is up from $7.00 when the union was recognized in 2003 (and up from $3.35 when the union first started organizing in the 1980s).

Health Insurance: The state makes an annually adjusted contribution per hour worked (currently $0.97) to the union’s Health Benefit Fund, a trust fund jointly administered by the union and employer representatives. 2012 CBA art. VII, § 2. The state reserves the right to audit the Fund. Id. Health benefits first became available to PAs through the Fund (under a lump sum contribution funding formula) in November 2010.

Labor-Management Committee: Article VIII of the current CBA contains a provision for ongoing labor-management cooperation. Over the years the committee has discussed a number of issues including: assessments of the grievance process; program updates such as caseload and budget changes; other changes to the program; hours cuts due to consumer reassessments and how to best communicate these changes to workers; various payroll issues including delayed paycheck processing; the availability of latex gloves; early efforts to explore orientation and training options; and electronic verification for PAs reporting to work.

Training: Article IX, § 1 provides up to $2 million annually to the union’s Training Fund, a benefit first negotiated in the prior CBA. The state approves an annual training plan and proposed budget from the Fund and reimburses the Fund for actual expenses on a quarterly basis. The Training Fund makes voluntary, paid trainings available to PAs throughout the state.

Article IX, § 1 also requires, for the first time, a mandatory program orientation for all new PAs, for which they are compensated at their regular hourly rate. This orientation is also administered through the Training Fund and is currently being piloted in four areas of the state with the goal of expanding to statewide by mid-2014.

Health and Safety: Article IX, § 2, requires the state to provide gloves when requested by a personal assistant.

Grievance Process: Article XI contains a grievance process for disputes over the CBA. According to the local’s records, 600 grievances have been filed since 2003, with 295 resolved, 80 withdrawn, and 225 still pending. All but one of the resolved grievances were resolved prior to arbitration. The single arbitration award that was issued (Clifford award, 2009) resolved a dispute over whether the state had any credible allegations of abuse as the basis for placing grievant on restricted pay status. The vast majority of other grievances (510 of 600) have been about payroll issues, with the remainder raising issues of dignity and respect, discipline, and health and safety.

Background checks and electronic visit verification: The local expects to finalize a side letter with the state in the coming weeks with the goal of implementing background checks for new providers and visit verification in early 2014 and phasing in background checks for current providers.

Union security and duty of fair representation

The union may negotiate a fair share fee, which shall then be deducted by the state. 5 ILCS § 315/6(e). Fee amounts must be based on the union’s chargeable expenditures and may not include any contributions related to political spending. See id. § 315/3(g). Article X, § 6 of the current CBA provides for automatic deduction of fair share fees from non-members. The union sends an annual notice to all nonmembers with the chargeable/non-chargeable breakdown from the previous year. The current fair share rate (based on 2011 spending) is 78.76% of full dues.

The statute also imposes a duty of fair representation. See id. § 315/6(d). The union has never received a DFR charge from a PA.

Massachusetts

History and statutory basis for bargaining

1199SEIU United Healthcare Workers East represents approximately 33,000 personal care attendants (“PCAs”) for purposes of collective bargaining with the Personal Care Attendant Quality Home Care Workforce Council pursuant to Mass. General Laws (M.G.L.) ch. 118E, sections 70–75, enacted in 2006. PCAs elected the union as their bargaining representative in 2007 and it entered into its first CBA with the Council in 2008. The current CBA became effective July 1, 2012 and runs through June 30, 2015.

Contract highlights

Wages: PCAs currently earn $12.98/hour, with an increase to $13.38 scheduled for July 1, 2014, CBA art. 10, as well as a time-and-a-half premium for certain holidays, CBA art. 14.

PTO: Article 13 of the current CBA provides a state contribution of $1.5 million for a paid time off fund to be disbursed by the Joint Labor Management Committee (“LMC”) created by Article 8 (the previous contract allocated $1 million for this purpose, which was distributed to PCAs based on hours worked).

Training: Article 8 also provides a $1 million contribution to the 1199SEIU Training and Upgrading Fund to be used as approved by the LMC for providing voluntary, no-cost training to PCAs. See also Side Letter to current CBA. According to the local, trainings are currently offered in various locations around the state in First Aid, CPR, Universal Precautions, Communications/Boundary Setting, Computers (101, Word, Excel) and ESOL. 2014 classes will also include Nutrition, Safe Lifting, and Supporting Consumers with Dementia. The Fund will also cover tuition vouchers for up to three college course a year and course costs, testing, and uniform costs for PCAs who enroll in a Certified Nurse Assistant program.

The union successfully bargained for a PCA orientation program to begin in February 2014, to be administered by the 1199SEIU Training and Upgrading Fund. PCAs will be paid for attending orientation sessions.

Health Insurance: Article 11 of the CBA creates a Health Insurance Committee (distinct from the LMC) that includes, in addition to representatives from the union and the Council, representatives from the Office of Disability Policy and Programs, the Health Connector Authority, MassHealth, and “other appropriate representatives of the Administration and/or PCA Consumers,” with final representation determined by the union and the Administration. This committee is tasked with studying mechanisms for making health insurance available to PCAs with the goal of offering this benefit beginning July 2014. Id. The local informs us that the state has recently committed approximately $60,000 to conduct a survey of current health insurance coverage among the PCA workforce, which the local estimates to be around 50% Medicaid-eligible and 15–20% uninsured.

Grievance Process: Article 15 creates a grievance arbitration process that specifically excludes disputes regarding consumers’ rights to hire, fire, and supervise their PCAs. According to the local, only one grievance has resulted in a written settlement. In this matter, the union grieved the denial of holiday-premium pay to a PCA whose consumer had previously used up his or her budget allocation for paying this premium. The settlement required the Council to ensure that the fiscal intermediaries it contracts with for payroll processing track such information and makes it available to consumers; to train consumers on verifying the availability of funds before scheduling holiday work; and to permit PCAs to inquire about the consumer’s holiday-pay budget to the fiscal intermediary prior to working a holiday shift if their consumer was unwilling or unable to provide this information.

Registry: The Council is required by statute to operate a referral registry, which it does through a vendor. See M.G.L. ch. 188E, § 72. The union has never bargained over the operation of the registry.

Union security and duty of fair representation

The union is permitted by statute to negotiate in its CBA a non-member service fee, equivalent to dues, which shall be deducted from payroll. M.G.L. ch. 150E, § 12; id. ch. 180, § 17G. The local has done so. CBA art. 4. A duty of fair representation is imposed on the union by statute. M.G.L. ch. 150E, § 5.

III.           New states

Missouri: Missouri personal care attendants gained bargaining rights through Proposition B, a voter initiative passed in 2008 and codified at Missouri Revised Statutes § 208.856–.865.[10] A joint SEIU/AFSCME local was elected as representative in 2009 and, after challenges to that election, was again elected by PCAs in rerun election in 2010. However, certification of the bargaining representative was enjoined until November 2012, when the unions finally prevailed on all legal challenges to the certification and were able to begin the process of bargaining a first contract.

Missouri courts have read the public sector labor statute as obligating the union to represent all employees in the bargaining unit and permitting the union to negotiate for a fair share fee for doing so. See Schaffer v. Bd. of Educ. of St. Louis, 869 S.W. 2d 163, 167 (Ct. App. Mo. 1993).

Maryland: AFSCME Council 67-Local 406 currently represents approximately 4,000 independent home care providers pursuant to Md. Health-Gen. Code § 15-901 to 907, which was enacted in 2011. The union was first recognized as the majority representative in 2008 under the Executive Order that preceded this statute (Exec. Order 01.01.2007.15 (2007)) and bargained a Memorandum of Understanding (“MOU”) effective July 1, 2010. The union is currently negotiating its first contract under the new statute.

The MOU secured collaborative relations between the union and the state in a number of areas. Article 8(E) created a joint committee to study provider access to affordable health insurance. Article 10 created a working group including the parties and other stakeholders to explore the creation of a registry and referral system. Under Article 11, the parties agreed to jointly develop best practices to promote provider health and safety, which the state would publish in its Provider Handbook; to communicate to providers various health and safety information; and that the state would provide gloves, including non-allergic options, contingent upon appropriations for such purposes. Article 12 provides a framework for the parties to work together in developing and promoting professional development and training opportunities. Article 14 created a State-Provider Cooperation Committee to meet regularly and work to improve the quality, choice, and efficiency of services. Article 15 created a grievance process for resolving disputes regarding the MOU.

AFSCME’s MOU under the Executive Order did not include a service fee provision. The statute imposes a duty of fair representation. Md. Health-Gen. Code § 15-903(c)(4).

Connecticut: SEIU 1199NE was elected majority representative by personal care attendants for a meet-and-confer system established under Executive Order 10 of 2011. In 2012, the legislature passed Public Act 12-33, codified at Connecticut General Statutes (C.G.S.) § 17b-706 et seq., which extended public sector collective bargaining rights to PCAs. The union represents approximately 7,000 PCAs and is currently bargaining its first contract.

Connecticut’s public sector labor law imposes a duty of fair representation on the exclusive representative. See C.G.S. § 5-271(d). The union may negotiate for payroll deduction of “nonmember service fees limited to the lesser of dues and initiation fees required of members or the proportionate share of expenses incident to collective bargaining.” C.G.S. § 17b-706b(b)(3).

Vermont: Act 48 of 2013 (adding 21 Vt. Stat. Ann. §§ 1631–44) extended bargaining rights to approximately 7,500 independent direct support providers. AFSCME was elected exclusive representative in 2013 (SEIU petitioned to intervene but withdrew prior to the election) and has recently begun bargaining for a first contract.

The statute permits the union to negotiate a service fee, 21 V.S.A. § 1634(b)(3), which may not exceed 85% of dues and shall be deducted in the same manner as dues, id. § 1631(3). It also imposes a limited duty of fair representation under which a bargaining representative that imposes a service fee must represent non-members in grievance proceedings free of charge. See 21 V.S.A. § 1635(a) (incorporating 3 V.S.A. § 941(k)).

Minnesota: Session Law chapter 128 of 2013 granted bargaining rights to individual providers and required the state to modify existing homecare programs to give all consumers the option of receiving IP homecare services.  No union has yet filed for election under statute’s provisions.

Under Minnesota public sector labor law, an exclusive representative is entitled by statute to require a fair share fee, which shall be deducted from the employer without written authorization. See Minn. Stat. § 179A.06, subd. 3. Minnesota courts have relied on federal duty of fair representation cases to read an analogous DFR into the Minnesota statute. See Eisen v. Minn., Dep’t of Public Welfare, 352 N.W. 2d 731, 735–36 (Minn. 1984).



[1] Available at http://www.justlabour.yorku.ca/volume12/pdfs/01_kelleher_press.pdf.

[2] Available at http://articles.latimes.com/1988-05-22/local/me-4933_1_home-care-workers.

[3] Available at http://www.dss.cahwnet.gov/getinfo/acin03/pdf/I-70_03.pdf.

[4] Available at http://laborcenter.berkeley.edu/homecare/DelpQuan.pdf.

[5] Available at http://articles.latimes.com/1999/feb/26/news/mn-12006.

[6] The locals represent workers in the following counties:

  • ULTCW: Alameda, Los Angeles, Mendocino, Monterey, Napa, San Benito, San Bernardino, Santa Cruz, Solano, and Ventura;
  • UHW: Amador, Calaveras, Contra Costa, Fresno, Marin, Sacramento, San Francisco, San Joaquin, Sonoma, Yolo, Yuba;
  • 521: San Mateo, Santa Clara;
  • UDW: El Dorado, Kern, Merced, Orange, Placer, Riverside, San Diego, Santa Barbara, San Luis Obispo, Stanislaus;
  • CUHW: Butte, Colusa, Del Norte, Glenn, Humboldt, Imperial, Inyo, Kings, Lake, Madera, Mariposa, Modoc, Nevada, Plumas, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Tulare, Tuolumne.

[7] The three counties where workers are not yet represented—Alpine, Lassen, and Mono—have barely 200 providers in total according to CAPA’s estimate. Other estimates for the total number of IHSS providers are in the same ballpark. CAPA’s homepage states that there were 357,849 providers in the 56 public authority counties as of January 10, 2011, http://www.capaihss.org/, and a Legislative Analyst’s Office report from 2010 estimated the number at 376,000. See Mac Taylor, Legislative Analyst’s Office, Considering the State Costs and Benefits: In-Home Supportive Services Program 10 (Jan. 21, 2010).

[8] The preamble is published along with the text of the amendment at http://bluebook.state.or.us/state/constitution/constitution15.htm.

[9] The findings contained in Initiative 775 and codified at RCW 74.39A.220 including the following:

  • (4) The quality of long-term in-home care services in Washington would benefit from improved regulation, higher standards, better accountability, and improved access to such services. The quality of long-term in-home care services would further be improved by a well-trained, stable individual provider workforce earning reasonable wages and benefits.
  • (5) Washington seniors and persons with disabilities would benefit from the establishment of an authority that has the power and duty to regulate and improve the quality of long-term in-home care services.
  • (6) The authority should ensure that the quality of long-term in-home care services provided by individual providers is improved through better regulation, higher standards, increased accountability, and the enhanced ability to obtain services. The authority should also encourage stability in the individual provider workforce through collective bargaining and by providing training opportunities.

[10] The ballot question before voters was:

Shall Missouri law be amended to enable the elderly and Missourians with disabilities to continue living independently in their homes by creating the Missouri Quality Homecare Council to ensure the availability of quality home care services under the Medicaid program by recruiting, training, and stabilizing the home care workforce?

See 2008 Ballot Measures, http://www.sos.mo.gov/elections/2008ballot/.

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