FILE - Service Employees International Union SEIU

The Dupont Circle headquarters of the Service Employees International Union.

(The Center Square) – Seven California home health care providers have appealed their class action lawsuit, Polk v. Yee, to the Ninth Circuit Court of Appeals. The plaintiffs are asking the court to rule that the SEIU Local 2015’s practice of deducting union dues from Medicaid payments from private employees without their knowing consent and imposing deduction restrictions are unconstitutional.

They are also seeking refunds for the money the union took out of their paychecks.

The plaintiffs argue that the SEIU Local 2015 union has been skimming union dues from Medicaid payments from providers without their consent, and also prohibited them from stopping these deductions outside of a short “escape period.”

Represented by the National Right to Work Foundation (NRWF) and Freedom Foundation, they argue the union's and state’s plan violate their First Amendment rights and federal law governing Medicaid.

“Unfortunately, the hard-working caregivers in this case are not the only ones being victimized by unions like SEIU,” Eric Stahlfeld, Freedom Foundation chief litigation counsel, said in a statement. “Our research shows that states like California illegally divert $150 million each year to unions from 350,000 caregivers’ Medicaid payments.”

The seven plaintiffs are caretakers of disabled individuals under the In-Home Support Services (IHSS) program, and received Medicaid subsidies for providing services. The plaintiffs maintain that SEIU officials are breaching their rights under the Supreme Court’s rulings in the NRWF-won cases Harris v. Quinn (2014) and Janus v. AFSCME (2018) by siphoning dues from the Medicaid payments without their knowing consent and restricting the time in which they can cut off these deductions.

In Harris, the Supreme Court ruled that unions contravene the First Amendment when they force home health care providers who receive some subsidies from the state to pay union dues.

In Janus v. AFSCME, the U.S. Supreme Court held that no public sector employee could be forced to subsidize union activities as a condition of employment, and that government agencies can only deduct union payments from a public worker’s wages with an affirmative waiver of his or her First Amendment right not to pay. It ruled, “neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

The plaintiffs, Delores Polk, Heather Herrick, Lien Loi, Peter Loi, Susan McKay, Jolene Montoya and Scott Ungar all participate in the In-Home Support Services (IHSS) program, which allots Medicaid funds to those who provide home-based aid to people with disabilities. Their complaint states that “even though they are not public employees,” the state of California considers home health care providers for unionization purposes and takes union dues from them at the behest of SEIU officials.

It also states that federal law governing IHSS prohibits diverting any part of Medicaid payments to “any other party” besides the providers.

“It is unconscionable that SEIU union bosses are siphoning money out of these providers’ pockets merely because those they aid inside their own homes happen to receive state subsidies for their care,” NRWF president Mark Mix said in a statement. “This dues skim scam is a blatant violation of federal law and the Supreme Court’s rulings in Harris and Janus. It must be stopped immediately.”

While the efforts of the Freedom Foundation and NRWF have prompted the state Department of Health and Human Services to formally oppose unions skimming from Medicaid, they have continued to take money out of Medicaid payments. Stopping them from doing so will only happen after federal courts intervene, the foundations note.