A Pennsylvania court said Wednesday that Democratic Gov. Tom Wolf exceeded his authority when he issued an executive order last year creating a de facto union for state-subsidized home healthcare providers.
The order was little more than an attempt to circumvent state law that said the providers, also known as “direct care workers,” were not eligible for collective bargaining, the court found. The ruling ended an effort by Wolf to help his union allies represent the workers, who care for the elderly and infirm people in the care recipient’s home.
“The executive order is de facto legislation, with provisions contrary to the existing statutory scheme. At its core, the executive order invades the relationship between a [direct care worker] and the employer participant who receives personal services in his or her home,” the five-judge panel found.
Critics of Wolf’s effort called the decision a victory for the workers. “Among Pennsylvania’s 20,000 home care workers, most look after close family members or friends. Unfortunately, [unions] view these home care workers as potential revenue sources and seek to disrupt their relationships to fund the unions’ political operations,” said David Osborne, president and general counsel for the Fairness Center, which representing providers in a separate lawsuit against the executive order.
A spokesman for Wolf could not be reached for comment.
Unions, particularly the American Federation of State, County and Municipal Employees and Service Employees International Union, have long sought to organize subsidized home careworkers in Pennsylvania and in other states. They sometimes have been stymied by the care providers’ unusual employment status: They are paid with public funds but contract their services with the care recipients, who are typically invalid family members. Traditionally, unions require a common employer and common workplace, neither of which applies to home healthcare workers.
Labor leaders have prodded friendly governors and state legislatures to declare that the home care workers are state employees, which would make them eligible to be unionized since the state would technically be the employer. In 2010, the Keystone State’s then-governor, Democrat Ed Rendell, signed such an order. It was rescinded after the commonwealth court noted that state law explicitly said the workers were not state employees and therefore not eligible to form a union.
Wolf’s order sought to get around that by creating a “direct care worker representative” for the healthcare workers, ostensibly to gather information about them for the state. The order said that it “shall not be construed or interpreted to create collective bargaining rights.” However, the entity it created would otherwise function as a union, being empowered as the workers’ representative with the state.
The court noted that Wolf’s order appeared to be little more than do a light re-write Rendell’s 2010 effort, noting the “striking similarities” between the two.
The judges found that, contrary to Wolf’s order’s own assertions, it did grant collective bargaining privileges to the providers. That was a significant problem, the court said, because the providers, while state-subsidized, are hired and managed by the care recipients, not the state. However, the executive order did not include them in the system it created to represent the workers.
“By excluding [disabled] participants, yet addressing terms and conditions of employment to which participants as employers may be subject, the executive order impairs participants’ rights to control personal care rendered to them in their own homes,” the judges said.
A group called United Home Care Workers, a joint entity created by AFSCME and SEIU, won an election last year to be the representative, though only 13 percent of providers eligible to vote did. Most apparently did not realize there was election happening. In a conference call with providers after the election, United Home Care Workers said it intended to press the state for 2 percent of all providers’ subsidy checks as a “representation fee.” In effect, the providers would have had to pay union dues to an organization that couldn’t legally bargain with the state on their behalf.
Such fees can be big money. SEIU had been receiving $10 million annually in dues from Illinois providers after it organized them under a 2003 executive order by then-Gov. Rod Blagojevich. The Supreme Court ruled the workers weren’t state employees in the 2014 case Harris v. Quinn. Wolf’s order was crafted in part to avoid running afoul of that ruling, critics argue.
Wolf is a close union ally, having received about $2 million in campaign donations from SEIU, AFSCME and their affiliates during his 2014 election campaign. A top assistant to the governor, Mike Brunelle, is a former SEIU officer.
