Labor organizing by executive order: Governor Spitzer and the unionization of home-based child day-care providers

Fordham Urban Law Journal, Feb, 2008 by David L. Gregory

I. INTRODUCTION

On May 8, 2007, New York Governor Eliot Spitzer issued Executive Order No. 12, opening the door for the unionization of 60,000 persons paid directly or indirectly, in whole or in part, by state funds, to provide home-based day-care for the children of working parents. (1)

The Governor's action was dramatic, stark, and extraordinarily significant. Rather than wait for the New York State Assembly and Senate to reenact legislation previously vetoed by former Governor Pataki in 2006, Governor Spitzer used the prerogative of the executive order to cut through many Gordian knots. (2)

Meanwhile, powerful unions have carved up the organizing turf: the United Federation of Teachers ("UFT") is successfully organizing home-based providers in New York City, and the Civil Service Employees Association ("CSEA") will organize those providers throughout the rest of the state. (3)

Critics of the Governor's initiative vociferously contend that it is a blatant legal fiction to characterize these providers as employees. This legal fiction, however, is certainly more enlightened than the perpetuation of the long-standing arrangement that relegates these providers to the economic margins. (4)

The child-care industry has more workers with earnings falling below the poverty line than any other industry, with over fifty percent of providers earning at the poverty level. (5) They are also overwhelmingly women of color. (6) Meanwhile, these providers of day care for children furnish an indispensable service to the working-parent cornerstone of the economy. In addition, "from 1947 to 2004, the labor force participation rate of mothers with children between six and seventeen years climbed from roughly twenty-five percent to more than seventy-seven percent." (7)

By some economic measures, these essential service providers are very much employees. (8) But, employees of whom? Are the parents and guardians of the children consigned to the care of these providers their employers? No. Rather, by operation of Executive Order No. 12, it is the State--but the State as employer in very important, and yet very limited, ways. (9)

At the federal level, the past term of the United States Supreme Court was decidedly adverse to the interests of low-wage workers. (10) In Long Island Care at Home v. Coke, the Court unanimously ruled that domestic workers, including the home health workers employed by third parties, were not protected by the federal minimum wage law, the Fair Labor Standards Act, and thus had no federal claim for overtime pay at a premium rate. (11) At the same time, 2007 witnessed the dawn of significant promise for an important component of workers on the economic margins in New York. (12) At least in part, these initiatives may represent a response to the erosion of labor protections or the lack of hope in improving labor rights at the federal level.

This Article discusses Governor Spitzer's May 8, 2007 executive order as well as earlier legislative and executive initiatives in New York and other states to provide organizing rights to groups of workers paid through state funds. In particular, it looks at California's analogous initiative via legislation, Governor Pataki's veto of similar legislation in 2006, executive orders of Illinois, Oregon, Iowa, and New Jersey governors, organizing initiatives by major unions, their likely consequences, and some implications for future innovations in organizing.

II. UNIONIZATION OF HOME-CARE AND CHILD-CARE WORKERS IN OTHER STATES

A. The California Precursor

One of the most significant gains in union membership in fifty years occurred in 1999, when over 70,000 home-care workers voted to join the Service Employees International Union ("SEIU") in Los Angeles. (13) This successful organizational drive had its genesis in the 1980s, when SEIU and the American Federation of State, County, and Municipal Employees ("AFSCME") began attempts to organize these home-care workers, (14) with Los Angeles as the epicenter for particularly intense grassroots organizing. (15)

The core legal problem confronting the home-care workers was their ambiguous and problematic employment status. California used a state agency, the In-Home Supportive Services ("IHSS"), to administer state monies for home care. (16) California argued that the workers are independent contractors, employed by the elderly and the disabled, (17) even though the state paid "the workers' wages and unemployment and disability insurance." (18) Without an employer, there was no employer entity with whom the union could purport to effectively negotiate. (19)

In April 1988, workers demanded recognition of their SEIU Local 434, and sought Los Angeles County's acknowledgement of its status as their official employer. (20) The SEIU began negotiating with the Los Angeles county government, but in January 1989, California refused to recognize a collective bargaining agreement that had been reached by Los Angeles County and SEIU Local 434. (21) The union filed suit in California state court, demanding enforcement of the agreement. (22) In February 1989, the court ruled against the union, (23) and the California Court of Appeal upheld the ruling on appeal. (24) Restating the decision of the trial court, the Court found that because the county exercised little control over the home-care workers they could not be considered public employees. (25) As a result, the SEIU's initial legal attempt to force the county to bargain with them was judicially roadblocked. (26)