The Yale Law Journal

VOLUME
132
2022
NUMBER
1
October 2022
1-325

Between Public and Private: Care Workers, Fissuring, and Labor Law

Labor and Employment Law

abstract. In the childcare and home-care sectors of the “care economy,” wages are low and working conditions are poor, driving high turnover and inadequate access to care. This Note introduces the concept of “public-private fissuring” and identifies it as one mechanism that devalues care. Although states set wages and regulate working conditions, care workers covered by the National Labor Relations Act (NLRA) cannot bargain with these public entities under National Labor Relations Board supervision, inhibiting meaningful bargaining. To address this challenge, this Note argues that states should recognize their implicit joint-employer relationship with these workers, enabling care workers to bargain with the state over state-controlled employment conditions without impeding their ability to bargain with private employers under the NLRA.

author. Kyle Bigley, Yale Law School, J.D. 2022; University of Pennsylvania, B.A. 2016. I am deeply grateful to Kate Andrias, Craig Becker, Nicole Berner, Christine Jolls, Amy Kapczynski, Kayla Morin, and Gabriel Winant for their incisive comments, wholehearted engagement, and unwavering support. My gratitude also extends to Bo Malin-Mayor for his tireless editing and illuminating suggestions and to the editors of the Yale Law Journal for their diligent work. I dedicate this Note to my mother, Sara Bigley, and my grandfather, William Serrin, for instilling in me the idea that there is power in a union. All errors are my own.

Introduction

Writing for the majority in the 2014 case Harris v. Quinn, Justice Alito referred to the personal assistants providing in-home care to Illinois Medicaid beneficiaries as “quasi-public employees” or “partial-public employees,”1 contrasting them with “full-fledged state employees.”2 Alito’s distinction rested on the extent of state authority: while the State of Illinois hires, supervises, and fires “full-fledged public employees,” its involvement with “quasi-public employees” is limited to paying their wages and otherwise regulating the work, with individual consumers or contracting agencies in charge of hiring, firing, and supervision.3

Justice Alito’s characterization of the home-care workers was revelatory, exposing a perception of these workers as less than “real” public employees. This perception carried the day despite the fact that these home-care workers performed difficult, critical work that would later be recognized as “essential.”4 In response to Alito’s majority opinion, Justice Kagan countered that the home-care workers were, in fact, public employeesthey had a joint-employment relationship with the state and consumers.5 Under this relationship, the state and consumers shared control over the workers’ conditions, and both could be recognized as employers.6

This Note addresses the predicament that labor law creates for care workers like those in Harris v. Quinn, who often find themselves trapped between categories of “public” and “private” sector, at the nexus of the public welfare state and the “private” labor market. While these workers perform ostensibly “private” workoccurring in a private childcare center, nursing home, or the home itselfpublic programs such as Medicaid and the Child Care and Development Fund (CCDF) pay care workers’ wages and regulate their hours and working conditions. State government “shape[s] the structure of the industry and the terms and conditions of work.”7

Despite extensive state involvement in the care economy, low wages and poor working conditions for care workers have created a crisis with wide-ranging social and economic effects.8 Low-wage, overwhelmingly female, and disproportionately made up of immigrants and people of color, the care workforce is a key location in struggles for social and economic equality.9 Moreover, care work represents the future of the U.S. economy: the care economy generated 74% of low-wage job growth in the 2000s,10 and this trend is likely to continue given demographic pressures and the difficulty of outsourcing or automating these jobs. Home care is growing particularly rapidly, projected to add almost 1.2 million jobs in the next decade for a rate of growth about four times greater than the national average.11 While growing more slowly than home care, childcare faces extensive job shortages, which 78% of surveyed providers attributed to the low wages of the sector.12 Over the past year, the sector has shed 126,700 workersmore than 10% of the prepandemic workforce.13 Consequently, quality of and access to childcare are often poor, leading women to drop out of the paid workforce and take up caregiving burdens. Low wages and poor working conditions are not just issues for care workersthey are issues for society as a whole.

One issue driving conditions in the care economy is what this Note calls public-private fissuring. Through public-private fissuring, the state separates itself from labor-law responsibilities for care workers but retains extensive control over wages, working conditions, and work outcomes. Typically, labor law enables workers to bargain with entities that control the workers’ terms and conditions of employment. However, public-private fissuring prevents care workers from making direct claims on the state through collective bargaining, which contributes to the poor wages and working conditions in the care economy. Although the term “fissuring” arose in the private sector, this Note argues that its logic extends to employmentsuch as care workwhich straddles both the “public” and “private” sectors. Through fissuring, the state obscures its role in shaping terms and conditions of employment and avoids bargaining responsibility.14

This Note focuses on how public-private fissuring affects care workers covered by the National Labor Relations Act (NLRA), rather than those workers who are exempt from the Act.15 In the care economy, workers generally fall into two categories: those employed by private employershome-care agencies, nursing homes, and childcare centersand those who work directly with clients, often called independent provider (IP) or consumer-directed home-care workers and home-based or family childcare workers.16 The workers in this first category generally fall under the coverage of the NLRA and are the focus of this Note.

Public-private fissuring is especially pernicious for NLRA-covered workers because the fissuring occurs over the jurisdictional divide between the federal NLRA and state-based, public-sector labor law. The NLRA enables care workers to bargain with the private entity but does not grant the National Labor Relations Board (NLRB) jurisdiction over the public entity. Accordingly, these care workers cannot collectively bargain with the powerful public entities that set reimbursement rates and regulate working conditions. As a result, although these public entities have significant control over employment conditions, they have thus far remained beyond the reach of collective bargaining.

To address this challenge, this Note proposes that states can and should authorize comprehensive bargaining relationships between NLRA-covered care workers and public entities, a proposal this Note calls a joint-employer solution. The concept of the joint employer is not new; in the private sector, a more robust joint-employer standard has emerged as one response to the problem of fissuring. However, this Note proposes that public-sector labor law recognize a joint-employer relationship with care workers, even though those workers are also directly employed by private entities and covered by the NLRA. Here, just as a broad joint-employer standard has responded to fissuring in the private sector, so too can a joint-employer standard serve as an answer to public-private fissuring. By recognizing the implicit public-employment relationship between care workers and the state in addition to the explicit private-employment relationship between care workers and agencies, this policy would allow care workers to collectively bargain with the statemitigating the pernicious effects of public-private fissuring.

The joint-employer solution would operate for NLRA-covered care workers as follows. First, these care workers would continue to bargain with their private employerthe home-care agency, nursing home, or childcare centerunder NLRB jurisdiction, as they do under current NLRB doctrine.17 However, because the NLRB does not have jurisdiction over the public entities that set reimbursement rates and regulate working conditions, bargaining under NLRB jurisdiction alone is inadequate. Second, then, this Note argues that states should authorize workers to bargain simultaneously with those public entities. This proposal creates a joint-employer relationship because workers would bargain with two entities: the agency (or center) and the state. Unlike traditional conceptions of the joint-employer relationship, however, this relationship would traverse jurisdictional boundaries, as workers would bargain under both the federal NLRA and state labor law.

No state has enacted such a collective-bargaining scheme for NLRA-covered workers, a fact which is especially striking given that a number of states have recognized a joint-employer relationship with NLRA-exempt care workers.18 Beginning with the election of 74,000 home-care workers in Los Angeles County in 1999, more than a dozen states have enabled bargaining between public entities and NLRA-exempt workers as the result of innovative organizing strategies from care workers and their unions, especially the Service Employees International Union (SEIU).19 As this Note describes, states face fewer barriers to regulating the labor relationships of care workers not covered by the NLRA. Reform efforts and the academic literature have primarily focused on these home-based, NLRA-exempt care workers.

Comparatively less attention has been paid to NLRA-covered workers at home-care agencies, nursing homes, and childcare centers, despite the fact that they have been similarly locked out of a bargaining relationship with the state. This Note fills that gap by identifying public-private fissuring as a key issue and proposing a joint-employer solution for NLRA-covered care workers to address that challenge. Against the backdrop of the care-economy crisis, this Note argues that the creation of a bargaining relationship between public entities and workers covered by the NLRA is both possible and desirable. The joint-employer standard this Note proposes would provide NLRA-covered workers with a direct means of raising their wages and improving their working conditions, which in turn would improve quality of and access to care. This makes the joint-employer standard a powerful legal means of addressing public-private fissuring.

This Note proceeds as follows. Part I characterizes the structure of the care economy as “fissured,” as states separate themselves from labor-law responsibility while extensively regulating and funding the work. Public-private fissuring partially drives low wages and poor working conditions in the care economy because it separates workers from direct employment by the powerful public entities that control their working conditions. The jurisdictional divide between public and private labor law exacerbates this fissuring, as the NLRB cannot compel bargaining between care workers and these public entities.

Part II proposes that states recognize their joint-employer relationship with NLRA-covered care workers to overcome public-private fissuring. As this Part discusses, the joint-employer standard has emerged as a central response to the problem of fissuring in the private sector. This Note applies the joint-employer standard to NLRA-covered care workers and proposes that states allow these workers to bargain collectively with public entities over reimbursement and subsidy rates, pass-throughs, training and development programs and incentives, and other vital workplace issues. It sketches the key elements of what this regime might encompass.

Part III analyzes the potential NLRA preemption objection. NLRA preemption is expansive, and past state attempts to regulate labor relations have often run afoul of the doctrine. However, this Note shows that states can authorize collective bargaining between public entities and NLRA-covered workers without issue.

Finally, Part IV considers other practical and policy concerns. Consistent with the NLRA, NLRB precedent, and labor-law policy objectives, a joint-employer standard for NLRA-covered workers can confront public-private fissuring at the root and begin to address crisis conditions in the care economy.