Blog Pennsylvania Homecare and the First Amendment (Part III)
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.
One of the reasons the issue of exclusive representation is especially relevant to homecare workers in Pennsylvania stems from the issuance of an Executive Order in 2015 effectively unionizing 20,000 homecare workers.
More specifically, the Executive Order establishes a process for election of a “representative” for homecare workers and a requirement that, once elected, the representative “meet and confer” with administration officials to discuss enumerated matters, including terms and conditions of homecare workers’ employment. To facilitate election of the representative, the Executive Order requires Pennsylvania’s Department of Human Services to compile monthly a list of the names and addresses of all homecare workers who were paid in the previous three months, which can be provided to an organization that has support from just 50 homecare workers. At any point, the organization seeking representative status can force an election with support from just 10% of the workers on the list, with a majority of those voting imposing exclusive representation on all other homecare workers. In 2015, the union currently representing homecare workers in Pennsylvania became the representative for all covered homecare workers based on 2,663 votes, out of approximately 20,000 workers eligible to vote.
Thereafter, the Executive Order requires the Secretary of the Department of Human Services and other officials to meet with the exclusive representative at least monthly. These “meet and confer” sessions must include discussion, among other topics, of “[s]tandards for compensating Direct Care Workers,” “Commonwealth payment procedures,” “[t]raining and professional development opportunities,” and “[v]oluntary payroll deductions.” Any mutual understandings reached between the Secretary and the exclusive representative during this meet and confer process must be reduced to writing.
The only recourse for homecare workers who do not wish to be represented by the employee organization is to seek its removal under terms set by the Executive Order, which specifically prohibits removal within the first year after the organization becomes the exclusive representative and requires initiating the election process anew for another representative. Despite the imposition of such a representative, the Executive Order stipulates that “[n]othing in this Executive Order shall be interpreted to grant Direct Care Workers the status of Commonwealth employees.” Indeed, both in fact and in law, the employer for covered homecare workers remains the individual receiving care. Yet the employer is not included in any negotiations between the representative and the government.
Shortly after the Executive Order issued, several homecare workers and the participants who employ them brought two different lawsuits challenging the order. The Fairness Center represents two clients who opposed this imposition of a state-mandated exclusive representative into their long-running homecare setup. One client has provided homecare services to his employer, a quadriplegic adult with muscular dystrophy, for over 25 years. Until the Executive Order, the two had successfully and amicably negotiated the terms and conditions of the homecare worker’s employment without the aid of a union, and the homecare worker opposed his exclusive representation by a labor organization. The two thus challenged the Executive Order in state court, arguing that it exceeded the Governor’s power under the state constitution.
The challengers initially prevailed, securing an injunction of the Executive Order in Pennsylvania’s Commonwealth Court. The Commonwealth Court held that the governor had exceeded his authority because the order was de facto legislation that, “[a]t its core . . . invades the relationship between a [direct care worker] and the employer participant who receives personal services in his or her home.”
On a consolidated appeal by Governor Wolf, however, the Pennsylvania Supreme Court upheld the Governor’s Executive Order as a permissible exercise of the governor’s power. The court stated that what drove its analysis was that, unlike the process set forth by existing labor law, “the entire process set forth in the Order is voluntary, non-binding, non-exclusive, and unenforceable.” In fact, the court concluded, the Executive Order set up an entirely distinct form of representation in which the employer would be excluded from discussions:
[C]ollective bargaining statutes establish an enforceable process by which employees, through their union and only through their union, deal directly with the employer of the employees whom the union represents. [43 Pa. Stat. § 211.5; 43 Pa. Stat. § 1101.701]. That is not the case with the Executive Order. The participants are the employers of the DCWs, and the Order makes clear that the Commonwealth is not the employer of the DCWs. 
The court denied an application for reargument.[14
 4 Pa. Code § 7a.113.
 Markham, 147 A.3d at 1267–68.
 See Markham, 147 A.3d at 1268.
 4 Pa. Code § 7a.113.
 Id.; see also Markham, 147 A.3d at 1268.
 4 Pa. Code § 7a.113.
 Id. § 7a.115.
 See Markham, 190 A.3d at 1179–80.
 Markham, 147 A.3d at 1279; Smith v. Wolf, No. 177 M.D. 2015, 2016 WL 6069483, at *3 (Pa. Commw. Ct. Oct. 14, 2016), vacated sub nom. Markham v. Wolf, 190 A.3d 1175 (Pa. 2018).
 Markham, 147 A.3d at 1278.
 See Markham, 190 A.3d at 1185–89.
 Id. at 1184–85.
 Id. at 1188.
 Markham v. Wolf, No. 110 MAP 2016 (Pa. Nov. 16, 2018) (order denying application for reargument).