Blog Pennsylvania Homecare & the First Amendment (Part I)

David R. Osborne

Right now, the United States Supreme Court is considering hearing a case called Bierman v. Dayton, in which eight homecare workers from Minnesota argue that forcing an exclusive representative on them violates their First Amendment rights.

As the Fairness Center argued in an amicus brief submitted on behalf of its clients on January 16, 2019, homecare workers serve an important purpose, and their rights are threatened by exclusive representation. The following is adapted from that brief.

Why do homecare workers matter?

Over the last 30 years, the trend in long-term caregiving has shifted from institutional care to more at-home care, with such care now comprising nearly 43% of Medicaid spending on long-term care.1 Established after Congress authorized the waiver of certain federal requirements in 1981, Medicaid waiver programs allow states to fund home- and community-based services for some Medicaid-eligible individuals.2 Once a state waiver plan has been approved by the federal Centers for Medicare and Medicaid Services, states can receive federal matching funds to finance their waiver programs covering home health nursing services and personal care services, among others.3

In Pennsylvania, as in many other states, this homecare is commonly delivered by private-sector employees, either through agencies, which employ homecare workers, or directly to recipients (sometimes referred to as “participants” or “consumers”), who employ their own homecare workers. Pennsylvania has ten Medicaid waiver programs funding home-based care, plus one state-funded program, Pennsylvania’s Attendant Care Services Act, called “Act 150.”4 According to Pennsylvania’s Department of Human Services, Pennsylvania had 72,766 participants receiving care through its homecare waiver programs as of 2011.5

In the context of agency-employed homecare, unions have successfully imposed exclusive representation on workers under the National Labor Relations Act. But in the context of participant-employed homecare, the National Labor Relations Act clearly excludes homecare workers from unionizing.6 Likewise, many state labor laws governing private-sector workers exclude homecare workers from their coverage.7 Indeed, “[i]n the homecare sector, traditional collective bargaining has often been legally impossible because homecare workers are classified either as employees of the single clients for whom they work or as independent contractors.”8

Because federal and many state laws exclude the possibility of exclusive representation under the participant model, unions have resorted to new, creative state-level measures to impose exclusive representation on those homecare workers.9


1 Janet O’Keeffe et al., U.S. Dep’t of Health & Human Servs., Understanding Medicaid Home & Community Services: A Primer 22 (2010), available at https://aspe.hhs.gov/system/files/pdf/76201/primer10.pdf.

2 Legislative Budget & Fin. Comm., Family Caregivers in Pennsylvania’s Home and Community-Based Waiver Programs S-1 (June 2015), available at http://lbfc.legis.state.pa.us/ Resources/Documents/Reports/527.pdf.

3 Id. at 4.

4 62 Pa. Stat. §§ 3051–58 (“Act 150”).

5 Family Caregivers, supra, at 23.

6 See Harris v. Quinn, 134 S. Ct. 2618, 2640 (2014) (“Federal labor law reflects the fact that the organization of household workers like the personal assistants does not further the interest of labor peace.”).

7 See, e.g., 43 Pa. Stat. § 211.3 (excluding, among other workers, “any individual employed . . . in the domestic service of any person in the home of such person.”).

8 Benjamin I. Sachs, The Unbundled Union: Politics Without Collective Bargaining, 123 YALE L.J. 148, 195 (2013).

9 See Sachs, supra, at 195–96; Cynthia L. Estlund et al., New Ways of Governing the Workplace: Proceedings of the 2007 Meeting of the Association of American Law Schools Section on Labor Relations and Employment Law, 11 EMP. RTS. & EMP’T POL’Y J. 111, 131 (2007).