By: Lizzy McLellan, the Legal Intelligencer Staff, September 23, 2016

The Commonwealth Court has struck down much of an executive order issued by Gov. Tom Wolf, ruling that the governor lacked the authority to create a process for organizing home-care workers. A five-judge en banc panel of the court found in Markham v. Wolf that Wolf had exceeded his constitutional powers in certain portions of an executive order focused on individuals who receive, and workers who provide, in-home medical and personal care. The court said Wolf’s executive order contradicts existing Pennsylvania laws by requiring direct-care workers to meet with a representative regarding terms of employment.

The group of direct-care workers, referred to in the opinion as DCWs, who petitioned the court had alleged Wolf attempted to unionize them through the order.

“By excluding DCWs from the definition of employees in the [Pennsylvania Labor Relations Act], the General Assembly chose to deny DCWs the ability to collectively bargain,” Judge Robert Simpson wrote for the four-judge majority. “By issuing the executive order, and encouraging DCWs to organize collectively, Gov. Wolf is essentially usurping that legislative power.”

Wolf issued the executive order in February 2015, establishing an advisory group to manage the quality of long-term personal care services, and creating a process by which a representative of direct- care workers would be selected to meet with state officials to negotiate payment procedures and other working conditions.

A group led by direct-care worker Jessica Markham filed a petition for review last April asserting that the order established organizational labor rights for workers in conflict with the PLRA and the Public Employee Relations Act. The Markham parties argued Wolf exceeded his powers as governor by issuing an executive order that was inconsistent with existing law.

Wolf argued that his executive order was a directive to a subordinate, for which the Pennsylvania Constitution provides. But the Commonwealth Court disagreed. The court said sections three and four of Wolf’s order surpassed a direction to subordinates, as it altered the employment relationship between direct-care workers and the people they work with. Those workers are not subordinates of Wolf, Simpson wrote.

The court said the order in effect grants collective bargaining rights to direct-care workers, which is contrary to existing legislation. The process also excludes the people those workers care for, who are the actual employers, from the bargaining process, the opinion noted.

“By excluding 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,” Simpson wrote.

The judges allowed section two of the order, which established the advisory group, to stand. James J. Kutz of Post & Schell, who represented the Markham parties, said his clients were never opposed to that part of the executive order. He said many of his clients were caretakers for their own family members, who did not want to pay union dues or be contacted by unions about joining. “We are extremely pleased with the en banc decision and we’re especially pleased for those direct-care workers and those who they work with that they will be free from the effort to unionize them,” Kutz said.

Wolf is disappointed in the court’s decision, a spokesman said in an emailed statement. “[Wolf] believes that home care workers should be able to communicate directly with the Department of Human Services, but the court has disagreed,” the spokesman said.

A group of Republican senators, led by Sen. Joe Scarnati, R-Jefferson, president pro tem, filed an application for relief seeking to intervene, claiming that the order was an unauthorized attempt by Wolf to exercise legislative power in violation of the separation of powers doc-trine. Their application was denied, and the Supreme Court affirmed that decision earlier this year. They filed a brief in the Commonwealth Court as amicus curiae.

Joel Frank of Lamb McErlane represented the legislators and said they are happy with the Commonwealth Court’s decision. After the ruling, he said, Wolf may “be more selective and more cognizant of the true implications of his actions and the limitations on his actions.”

Judge Michael Wojcik wrote a dissenting opinion. He said he would deny summary relief to the petitioners and allow the case to go to trial because the legal status of direct-care workers is unclear. If these workers are serving household needs, making them domestic workers, then the majority was correct, he said. But if they are providing personal services, more like nurses aides, the executive order would have to be analyzed from the perspective of the Pennsylvania Labor Relations Board.

Lizzy McLellan can be contacted at 215-557-2493 or lmclellan@alm.com. View article

Joel L. Frank, Managing Partner and Executive Committee Chairman of Lamb McErlane PC, concentrates his practice in commercial and civil litigation in state and federal courts.