Traditionally, the home-based care world has been mostly void of massive unionization efforts among its workers.
But that could change soon, thanks to a new ruling out of California related to “Assembly Bill 2455,” which the state passed in 2018. The bill aims to allow home-based care workers’ contact information to be unveiled, which gives unions the opportunity to contact workers on a more meaningful scale.
While the bill was passed a few years ago, home care associations have worked to block it, even filing suit in federal court. A federal district court heard dueling motions for summary judgment in the case earlier this month.
Broadly, home-based care interests argued the bill is preempted by the National Labor Relations Act. The district court said there was no regulatory structure that prevented contact information from being supplied.
Previously, in a fragmented industry, large sets of contact information were hard to come by for home-based care workers, and that offered a barrier for unions attempting to pick up traction. The California ruling could set a precedent for other states across the country, however.
“I think it will set a precedent, and I think that because we have already seen 2455-like legislation proposed elsewhere,” Angelo Spinola, co-chair of the home health and home care industry group at the law firm Polsinelli, told Home Health Care News. “I would expect that we’re going to see that this is not something that is isolated to California, but is a part of a coordinated effort to try to unionize this industry in the same way that other service workers have been unionized.”
For instance, Connecticut has already had a version of the bill that’s similar to Assembly Bill 2455 in California.
“I would anticipate that Connecticut and other states that are [Democrat-controlled] will have similar versions to this that are identified and established in the legislature,” Spinola said. “And it’s even possible that you see something like this at a federal level.”
The groundwork is set now for a strong push from unions in the home health and home care spaces over the next few years. The impact of COVID-19 on the workplace could also be an accelerant for unionization moving forward.
The Home Care Association of America (HCAOA) and the California Association for Health Service at Home (CAHSAH) are among the groups positioned against the bill.
“I think the timing is unfortunate, because we have already seen a resurgence of unions — the SEIU as a particular example — in this industry,” Spinola said. “A lot of the legislative initiatives that we’ve seen are very union-focused. So what I think it means is that over the next several years, there will be a real push from these unions to organize the home care industry and have a stronger presence in home care, generally.”
There is some union presence in home health and home care in states like New York, for example. But because of what the job entails — caregivers and aides working in the home, and not usually in an office-type setting — it’s a harder workforce to unionize.
A data set of every worker’s contact information in a given area would change that, of course.
In Connecticut’s original bill, workers did not have the ability to opt out of their contact information becoming available, whereas in California workers can do so. It is likely, if educated on the subject, that at least some caregivers would want to withhold that information from the public, according to Spinola.
The unveiling of private information could present other problems, he said.
“When you think about the profile of a lot of these caregivers, a lot of times it is single women or single mothers, and sometimes there’s been a history of domestic violence,” Spinola said. “And so disclosure of information related to the caregiver — for anyone to access — that could be a problem.”
Caregivers, again, can opt out of the Assembly Bill 2455. They have to be aware of that ability, though, and they also have to do it every time they register.
What agencies can do
Unions can create a slew of hurdles for agencies, but agencies obviously need to be careful about doing anything that would threaten a worker’s right to join one.
Broadly, unions can make sense from the workers’ perspective. Home-based care workers have been historically underpaid, which agencies themselves have often acknowledged. Additionally, since last spring, they have been working under risky circumstances due to the COVID-19 crisis.
The biggest problem that unionization creates for agencies, according to Spinola, is that modifying any policies or procedures becomes a negotiation with the union.
“That’s really the main issue, it’s that you have another organization that doesn’t necessarily know your business, but it’s collectively representing employees on how the business should be operated,” he said. “And you’ve seen lots of scenarios where the workplace becomes unionized … and the union becomes the alter ego of the employer and tries to establish how the employer should run its business.”