The push to unionize home health care workers as public employees was a campaign that originated in the 1980s in California under the direction of the SEIU. Many organizers credit Craig Becker, then a law professor at the University of California-Los Angeles, for orchestrating the new strategy of categorizing employment status by looking at the source of funding of the employee. A co-founder of the controversial community-organizing group Acorn, Wade Rathke, has stated: “For my money, Craig’s signal contribution has been his work in crafting and executing the legal strategies and protections which have allowed the effective organization of informal workers, and by this I mean home health-care workers.”[82]

The first successful unionization of this kind involved the SEIU organizing in-home caregivers in Los Angeles County in 1999, though the attempt originally failed when the union tried to organize against the county government. A California court ruled that the county was neither an employer nor a joint employer of the in-home care providers because the county did not control the employment.[83]

The California Legislature subsequently enacted a statute that allowed counties to establish “by ordinance, a public authority to provide for the delivery of in-home supportive services.”[84] This public authority would be deemed “the employer of in-home supportive services personnel [who were] referred to [the home help care] recipients,” although the recipients would “retain the right to hire, fire, and supervise the work of any in-home supportive services personnel providing services to them.”[85] An organizing drive against one of these entities in Los Angeles County netted organized labor 74,000 additional members and was hailed as “[o]ne of the most significant gains in union membership in fifty years.”[86]

Similar organizing efforts spread on the West Coast, seeking to duplicate the success of the Californian organizing drive. The next state to allow the organization of in-home caregivers was Oregon, which did so through a 2000 ballot initiative to amend the state constitution.[87] Washington followed in 2001 after organizers implemented a voter-initiated ballot measure.[88] Illinois was the next state to enact such a policy, which it did on March 4, 2003, via an executive order signed by then-Gov. Rod Blagojevich.

In 2009, Illinois attempted to expand the range of in-home caregivers who would be unionized as government employees. However, a majority of participating caregivers rejected both the SEIU and AFSCME affiliate, and these caregivers were never unionized.

This new model of what constitutes a “public employee” was summarized by the National Women’s Law Center: “Notwithstanding the absence of a traditional employer-employee relationship, this model used the provider’s relationship with the state — receipt of payment from the state under a program administered by the state — as the nexus to find or fashion an ‘employer of record’ with whom to bargain.”[89]

This nontraditional approach has led to uncertain results for workers. In Michigan, the experimental nature of such unionization was acknowledged by a union official involved in organizing home-based day care providers (a unionization that was later ended by the Legislature). Nick Ciaramitaro, director of legislation and public policy for American Federation of State, County and Municipal Employees Council 25, wrote in an email: “Much of the [collective bargaining contract] however is dependent on legislative or administrative action by the state of Michigan. In many ways, this [day care provider unionization] is an experiment with little guidance from statute and virtually no administrative or judicial precedent to follow.”[90]