Blog Pennsylvania Homecare & the First Amendment (Part II)

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.

This issue is particularly relevant to homecare workers in Pennsylvania, where unions have long targeted participant-directed homecare workers for exclusive representation.

In Pennsylvania, attempts to require exclusive representation of homecare workers first came under the administration of Governor Ed Rendell, who issued an executive order that imposed exclusive representation on participant-employed homecare workers.1 Similar executive orders unionizing homecare workers had previously been issued in Illinois, Ohio, and Maryland, and still another would be issued in Connecticut. Child care providers were similarly unionized by executive order throughout the country.

Affected participants and providers challenged Governor Rendell’s order as an invalid use of executive power and secured a preliminary injunction precluding its implementation.2 A month later, Governor Rendell rescinded the homecare executive order.3

Governor Tom Corbett was elected to the next term following Governor Rendell’s. He issued an executive order rejecting his predecessor’s approach in favor of a “Long-Term Care Commission,” a stakeholder forum that did not include any exclusive representative for homecare workers.4

But in February 2015, following the election of Governor Tom Wolf, another executive order effectively resulted in the unionizing of homecare workers.5 Governor Wolf’s executive order bore “striking similarities” to the one issued by Governor Rendell,6 also affecting homecare workers and recipients of services provided under the participant model.7 According to statistics from Pennsylvania’s Department of Human Services, 26,885 homecare workers were providing services under the Medicaid Waiver and Act 150 programs as of March 2015.8


1 See Pa. Exec. Order No. 2010-04, reprinted in 40 Pa. Bull. 6071 (Oct. 23, 2010), 4 Pa. Code §§ 7a.21–.30 (2010), rescinded by Pa. Exec. Order No. 2010-10, reprinted in 40 Pa. Bull. 7333 (Dec. 25, 2010), 4 Pa. Code § 7a.31 (2010).

2 See Markham v. Wolf, 147 A.3d 1259, 1276 (Pa. Commw. Ct. 2016).

3 See 4 Pa. Code § 7a.31.

4 See Pa. Exec. Order No. 2014-01, reprinted in 44 Pa. Bull. 1120 (Mar. 1, 2014); see also Pennsylvania Long-Term Care Commission Final Report 3–4 (Dec. 2014), available at 134443.pdf.

5 See 4 Pa. Code §§ 7a.111–.117.

6 Markham, 147 A.3d at 1276

7 4 Pa. Code § 7a.111.

8 Legislative Budget & Fin. Comm., Family Caregivers in Pennsylvania’s Home and Community-Based Waiver Programs (June 2015), available at