Lawsuit Defends Homecare Workers’ & Care Recipients’ Autonomy
April 7, 2015, HARRISBURG, Pa.—For the past 25 years, Don Lambrecht and David Smith have teamed up to allow Dave, a homebound quadriplegic, to lead a productive and fulfilling life—and they’ve formed a close friendship in the process. But earlier this year, a little-known executive order signed by Governor Wolf put their pact in jeopardy. Don says there is just one reason for the executive order, “Money—union dues.”
Wolf’s order allows a sudden public union takeover that would dismantle Dave’s control over his own care and siphon up to $21 million annually from the paychecks of 60,000 homecare workers like Don. As Dave points out, “Don doesn’t need to pay part of his income to a group for something that he’s been able to do for himself all these years.”
Seeking to defend Dave’s ability to privately arrange for his personal care and to prevent Don from having to pay union dues for which he would receive little to no benefit, the Fairness Center filed suit against Governor Wolf and the Pennsylvania Department of Human Services in Commonwealth Court on Monday. Click here for a detailed legal backgrounder.
“Governor Wolf’s illegal executive order would radically alter Dave and Don’s working relationship, needlessly forcing Don to collectively bargain against Dave, his legal employer,” commented David Osborne, general counsel for the Fairness Center. “In fact, many homecare workers care for and are employed by their own elderly parents or disabled children. Perversely, Wolf’s order would force them to collectively bargain against their own family members.”
Dave Smith of Phoenixville, age 59, copes with muscular dystrophy which has confined him to a wheelchair since the age of 11. Don 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 9-to-5 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.”
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.”
“The main tragedy of this executive order is that it would take away Dave’s authority to choose the circumstances of his care,” said Osborne. “If the order had been in place 25 years ago, Dave and Don may never have been allowed to enter into their arrangement and enrich each other’s lives.”
“Governor Wolf is obviously enabling a union money grab. The Wolf Administration claims that it’s helping the disabled and elderly, but it’s clearly limiting their right to direct their own homecare. It’s disappointing that a governor who campaigned on transparency and a ‘government that works’ is disguising his true intentions from the public and those directly affected by this policy change.
“The same stealth unionization effort by executive order was tried in 2010 by the Rendell Administration, but the order was rescinded after being challenged in court. The Commonwealth Court found Rendell’s order to be in conflict with Pennsylvania labor law. We should expect the same result here.
“It’s no secret that the SEIU, which stands to gain a potential $21 million windfall as a result, was one of the governor’s major campaign donors. The effort smacks of political payback with little consideration for the consequences to folks like Don and Dave whose daily lives will be negatively impacted.
“To ensure that their arrangement can continue, Don and Dave are asking the courts to stop the executive order from being implemented and to declare it unconstitutional.”
David Osborne is available for comment today. Due to his disability, Dave Smith has limited availability Wednesday afternoon by appointment. Contact Conner Drigotas, 844.293.1001, email@example.com to schedule an interview.
The Fairness Center is a nonprofit, public interest law firm offering free legal services to those facing unjust treatment from public employee union leaders.