Dave Smith of Phoenixville, age 59, copes with muscular dystrophy which has confined him to a wheelchair since the age of 11. Don Lambrecht has been indispensable to him. “Don’s really been my arms and legs for 25 years,” Dave says. Don, age 62, cares for Dave around-the-clock and lives rent-free in Dave’s home. “Anything that’s important, I’m there for him,” says Don. “It isn’t like a nine-to-five job where you can just go home and punch out for the shift.”
Dave and Don are proud of the close bond of friendship they’ve developed despite the long hours and intense care Dave needs. “Being friends helps,” says Don. According to Dave, “Don is really like part of my family as much as anything.”
Both say they don’t need a union stepping between them and disrupting an arrangement that’s working. Don says, “Unions don’t fit into this kind of work…it’s not practical.” Dave agrees: “Let me put it this way; we make a team that works well. To have someone else come in and say we need to do it this way for this many hours—that just doesn’t work.”
Before Dave hired Don 25 years ago, Dave had to fire a homecare worker who tried to take financial advantage of him. Now with Don, Dave directs his own care and sets terms and conditions of employment, including pay, with Don. Don is committed to caring for Dave, and the two are in all respects, friends. Don would gain nothing from joining a union to negotiate against Dave’s best interests. In fact, Dave and Don have a relationship much like that of other homecare workers and recipients. Many homecare workers are close friends or family members of the recipient whom they serve. They are not motivated by money: the annual salary for a typical homecare worker is just over $20,000.
Currently, homecare recipients like Dave can hire, fire, manage, and pay their own homecare providers. Dave took advantage of these rights 25 years ago to fire a previous attendant who was taking advantage of him financially and to hire Don as a replacement. Dave, who cannot get out of bed or answer the phone unaided, says that despite his disability, “I’ve been blessed to do much. Without [Don] here, I don’t know—I’m not sure where I’d be. I wouldn’t be able to be on my own.”
David W. Smith and Donald Lambrecht v. Governor Thomas W. Wolf, in his official capacity as Governor of the Commonwealth of Pennsylvania and, Commonwealth of Pennsylvania, Department of Human Services
The Fairness Center represents Dave Smith and his homecare worker, Don Lambrecht, in their challenge to Governor Wolf’s executive order “unionizing” Mr. Lambrecht and other homecare workers against Mr. Smith and other homecare recipients.
In February 2015, Governor Wolf issued an executive order that would allow unions to easily force representation on certain homecare (or “direct care”) workers who are paid through Medicaid or other state programs. Under the executive order, unions will be permitted to exact dues payments—up to $8 million annually—from these homecare workers, many of whom cannot afford to pay union dues, do not want union representation, and will receive little benefit from forced representation. Governor Wolf’s executive order is nearly identical to a 2010 executive order that then-Governor Rendell issued and that was ultimately rescinded after a court challenge.
Meanwhile, disabled and elderly homecare recipients stand to lose even more. Homecare recipients are the legal employers of their homecare workers targeted by the executive order; they have the authority to hire, train, manage, pay, and fire their homecare workers. In other words, the unionization of homecare workers organizes workers against the homecare recipients that they serve. Unions will take away homecare recipients’ authority as employers.
Mr. Smith and Mr. Lambrecht are first asking the court to stop Governor Wolf and the Department of Human Services from implementing the executive order. Second, they are asking the court to declare that the executive order is an unconstitutional exercise of the Governor’s power.