April 8, 2015 12:17 AM
A national battle over ongoing home-care worker organizing efforts has been rekindled in Pennsylvania now that a coalition of care providers and recipients has sued the Wolf administration, claiming an executive order issued by the Democratic governor is a stealth unionization attempt.
On Monday, the Pennsylvania Homecare Association and United Cerebral Palsy of Pennsylvania sued the Wolf administration in Commonwealth Court, saying the Feb. 27 executive order violates Pennsylvania’s constitution, because certain domestic care workers can’t unionize under state law.
The order, according to a news release from the two organizations, “establishes a process to unionize attendants who are hired directly by consumers to provide care in their homes, [and] is almost identical” to a 2010 executive order issued by former state Gov. Ed Rendell. That 2010 order was ultimately withdrawn by Mr. Rendell, also a Democrat, after legal resistance.
But labor groups are pushing back against that resistance, seeking to increase their ranks in what is certain to be a growth industry over the next decade, here and nationally. As baby boomers age — and try to stay out of nursing homes — the home-health-aide and personal-care-aide job markets are expected to grow by 50 percent between 2012 and 2022, according to the U.S. Bureau of labor Statistics. The average pay for a U.S. home health aide in 2012 was $10 an hour.
Pennsylvania, like many states, recognizes two broad classes of home-health workers — those who work for a home-health or hospice agency and are able to bargain collectively, and “direct care” aides, who are more like independent contractors. Both types of aides typically bathe, feed and dress seniors and the disabled, providing companionship and — in the case of Medicare-licensed aides — limited medical care.
In Pennsylvania, according to the Paraprofessional Healthcare Institute, there were nearly 116,000 home-health workers and personal-care aides employed by agencies as of 2014, and there are perhaps 12,000 more who fall into the independent contractor category. In many cases, those independent providers are actually relatives of the patients.
It’s those independent, directly hired aides who are the focal point of the executive order and the litigation.
“Time and again, it’s a daughter taking care of mom,” and often they live in the same house, said James J. Kutz, an attorney for the plaintiffs and principal with Post & Schell law firm. “Lists of these direct-care workers are being provided to unions as we talk,” and union representatives are soliciting the workers at their homes, he said.
But because even the independently hired aides are, in some ways, quasi-government contractors, receiving payments through Medicaid or Medicare funds, unions see an opportunity to organize. The SEIU, which counts more than 600,000 home-care workers among its membership, and AFSCME are trying to gain a larger foothold in this industry segment.
They’ve been successful in many states. In January, 27,000 newly unionized in-home health care workers reached a contract agreement with the state of Minnesota, paying them a minimum of $11 hourly. And in November, more than 8,000 workers represented by the Missouri Home Care Union agreed to their first tentative contract.
Those contracts come on the heels of the July 2004 U.S. Supreme Court ruling in Harris v. Quinn, which said that Illinois home health care workers can’t be required to pay fees that help cover the union’s costs of collective bargaining. In the 5-4 split decision, the Supreme Court ruled that “partial public employees” can’t be required to contribute union bargaining service charges, because compelling such contributions violates the First Amendment rights of non-union employees.
Gov. Tom Wolf’s executive order is aimed at improving access for patients, and improving working conditions for their employees, according to spokesman Jeff Sheridan. Despite the one-on-one nature of the transactions, the state has a keen interest in the industry, because workers are reimbursed through the Department of Human Services.
“Gov. Wolf’s executive order ensures that home-care workers have a voice in shaping the future of the industry and seniors have choices about where to receive care,” Mr. Sheridan said. “The executive order does not grant collective bargaining rights to workers, does not force them to join a union, and does not make them state employees.”
The order creates an appointed, seven-person panel called the Advisory Group on Participant-Directed Home Care, and also calls for the election of a “representative for the direct-care workers” to meet regularly with the governor. That organizational representative must demonstrate that “at least 10 percent of the providers identified on the most recent Direct Care Worker List choose to be represented by such an organization.”
The state home-care group says that unions and the governor are trying to interfere with what is a two-party relationship between patient and caregiver. Under Pennsylvania’s Home and Community-Based Services Waivers law, when it comes to at-home care, consumers have the option to choose either a home-care agency, or an individual direct-care worker.
Workers employed by home-care agencies are already eligible for unionization. But if a patient selects an individual direct-care worker, “the consumer becomes the sole employer and has the right to hire, fire and set pay rates,” even though those rates are often paid by Medicaid.
In their lawsuit, the Pennsylvania Homecare Association and United Cerebral Palsy say that Mr. Wolf’s order represents “an impermissible attempt to legislate” because the Pennsylvania Labor Relations Act forbids home-care workers from organizing.
Bill Toland: email@example.com or 412-263-2625.