OPINION BY JUDGE SIMPSON
In this case in our original jurisdiction, we are asked to determine the validity of an executive order which purports to create new arrangements for direct care workers who provide personal services to certain aged and disabled participants in their homes. We are mindful of the respect and privacy afforded to a person in his or her home, dating back at least to Elizabethan England, and expressed in the words of Sir Edward Coke: "For a man's home is his castle, et domus cuique tutissimum refugium."
More particularly, before this Court are the parties' cross-applications for summary relief. Jessica Markham, Victoria Markham, Jesse Charles, Pennsylvania Homecare Association (PHA), and United Cerebral Palsy of Pennsylvania (UCP) (collectively, Petitioners) filed a petition for declaratory and injunctive relief seeking to invalidate an executive order issued by Governor Thomas W. Wolf (Governor Wolf) pertaining to direct care workers (DCW) whose services to eligible aged or disabled individuals are paid by the Department of Human Services, Office of Long Term Living (Department). The Department and Governor Wolf (collectively, Respondents) also filed preliminary objections, which are before us for disposition.
On February 27, 2015, Governor Wolf issued Executive Order No. 2015-05 (Executive Order), entitled "Participant-Directed Home Care Services."
The Department administers Act 150
It is clear that we are addressing home-based services rendered to some of our neediest citizens where they live. Individuals receiving home care services are "participants." 55 Pa. Code § 52.3. Under the Home Care Programs, DCWs provide personal care and domestic services to enable participants to live at home rather than in an institution. At times, a DCW is a participant's relative, residing at the same address.
Home care services are directed either by participants, under the Participant Model, or by agencies under the Agency Model. Under the Participant Model, DCWs are recruited, hired, and managed by a participant who employs the DCW. By contrast, under the Agency Model, a home care agency recruits, hires and manages the DCW. As employers, participants have federal employer identification numbers, are subject to workers' compensation and unemployment requirements, and pay relevant employer taxes. Under Act 150, participants have the "right to make decisions about, direct the provision of and control ... [home] care services." Section 2(3) of Act 150, 62 P.S. § 3052(3). Thus, participants' control over their care is unfettered other than compliance with home care service regulations.
In sum, participants have three roles: they receive personal care and domestic services; they receive the services where they reside; and, they employ the persons who render the services in their homes.
The Executive Order governs the relationship between DCWs and the Department.
To aid the election process, on a monthly basis, the Department is required to compile a list of the names and addresses of all DCW workers (DCW List), who, within the three previous months, were paid through a Home Care Program that provides services under the Participant Model.
Section 2 of the Executive Order establishes an advisory group to advise the Governor and the Department "on ways to improve the quality of care delivered" through Home Care Programs (Advisory Group). Executive Order (E.O.) at 3. The Advisory Group is comprised of the Secretary of the Department (Secretary) and five members appointed by the Governor, including participants and advocates for seniors and persons with disabilities. The Advisory Group shall meet at least quarterly and discuss: (1) reducing the waiting list to receive services through Home Care Programs; (2) evaluating the Department to ensure program standards are met; (3) rebalancing Commonwealth resources from institutional care to home and community based services; (4) ensuring the Commonwealth adheres to the principles of participant direction, independent living and consumer choice; and, (5) "[o]ther issues that the Governor may deem appropriate."
The Executive Order requires the Secretary to designate the American Arbitration Association (AAA) to conduct an election for a representative of the DCWs, and to certify the election outcome pursuant to the process in the Executive Order. The Executive Order provides AAA shall conduct an election when an employee organization demonstrates support from at least 10% of the DCWs on the DCW List. All DCWs are eligible to vote in the election. Provided the organization meets the 10% threshold, a majority of votes cast determines which organization serves as the DCW representative (Designated Representative). Only one Designated Representative may be recognized at any time.
The Executive Order mandates the Secretary, the Deputy Secretary and the Designated Representative
In Section 3(c) entitled, "Memorandum of Mutual Understanding" (MOU), the Executive Order further provides the "[m]utual understandings reached during the meet and confer process
Section 4 of the Executive Order addresses the DCW List, to be used by a prospective employee organization in contacting DCWs.
Section 5 of the Executive Order is entitled "No Change to Existing Rights and Relationships." Some of the provisions, however, refer to new relationships that may arise during the operation of the Section 3(a) election process, the 3(b) meet and confer process, and the 3(c) memorandum of mutual understanding process.
During the litigation, Governor Wolf and the Department took steps to implement the Executive Order. To date, AAA certified United Home Care Workers of Pennsylvania, LLC (UHCWP) as the Designated Representative.
Petitioners filed a petition for review challenging the validity of the Executive Order. They seek declaratory and injunctive relief from its terms, asserting Governor Wolf exceeded his authority in issuing it. Petitioners also argue the Executive Order conflicts with both the Pennsylvania Labor Relations Act
Petitioners also sought preliminary injunctive relief before an election of a DCW representative, and to prevent implementation of the Executive Order.
Petitioners claim the Executive Order interferes with the unique relationship between DCWs and participants that occur in participants' homes. Jesse Charles and Victoria Markham are participants as defined in the Executive Order. Jessica Markham is a DCW who provides home care services to her mother, Victoria Markham. PHA and UCP are nonprofit membership corporations (collectively, Associations) comprised of provider members who employ DCWs under the Agency Model.
Respondents filed preliminary objections in the nature of a demurrer, also asserting Petitioners' claims are not ripe, and the Associations lack standing.
Petitioners filed an application to expedite their petition in the nature of preliminary relief, which this Court granted. The parties entered stipulations in April 2015 (April Stipulation) prior to the preliminary injunction hearing. After granting their application to expedite, then President Judge Dan Pellegrini heard Petitioners' request for preliminary injunction. He issued an order enjoining Respondents from entering a MOU pending disposition of the merits. He also ordered the parties to file applications for summary relief.
Prior to filing their applications for summary relief, the parties entered a second stipulation in June 2015 (June Stipulation).
The Senate Republican Caucus
Petitioners and Respondents both filed applications for summary relief pursuant to Pa. R.A.P. 1532(b). After briefing and oral argument, the parties' cross-applications for summary relief are ready for disposition.
Applications for summary relief are governed by Pa. R.A.P. 1532(b). It
As to preliminary objections in the nature of a demurrer, we may sustain preliminary objections only when, based on the facts pled, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief.
The purpose of the Declaratory Judgments Act "is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and is to be liberally construed and administered." 42 Pa. C.S. § 7541. Declaratory judgment as to the rights, status or legal relationships is appropriate only where there exists an actual controversy.
"To prevail on a claim for a permanent injunction, the plaintiff must establish a clear right to relief, that there is an urgent necessity to avoid an injury which cannot be compensated for by damages, and that greater injury will result from refusing rather than granting the relief requested."
Petitioners allege the Executive Order interferes with the participant-DCW employment relationship under Act 150, and establishes organizational labor rights for DCWs. They also contend Governor Wolf exceeded his authority in issuing the Executive Order because it does not implement or enforce existing law. Rather, the Executive Order creates rights that are inconsistent with existing law.
Respondents counter "the Executive Order is merely a tool for the [Department] and the Governor to efficiently get information from those who provide important services to some of our most vulnerable Pennsylvanians with the ultimate goal of providing better services." Resp'ts' Br. at 3. Respondents thus identify information gathering as its primary purpose. Respondents also allege the Executive Order is a
At the outset, we evaluate Respondents' challenge to Petitioners' standing and the ripeness of their claims. Contrary to Respondents' view, we find Petitioners are directly impacted by the Executive Order.
In denying legislative standing to Senators of the Majority Caucus, our Supreme Court reasoned, "challengers exist who are, from a standing perspective, sufficiently impacted by the Governor's issuance of [Executive Order], as amply demonstrated by the parties in this matter who include patients, [DCWs] and institutional health care providers."
Here, individual Petitioners have an interest in the litigation that is substantial, direct and immediate, and not a remote consequence of the challenged action.
So long as one of the petitioners has standing, an action may continue.
As to Respondents' objection that Petitioners anticipate a harm that may never occur, we emphasize this is an action for a declaratory judgment. The Declaratory Judgments Act is "remedial[;] [i]ts purpose is to settle and to afford relief from
Regardless, Petitioners allege non-speculative harm in that the Executive Order interferes with the relationship between a DCW and a participant in the participant's home. Section 3 of the Executive Order excludes participants from the meet and confer process designed to negotiate terms and conditions of employment. The Executive Order further disturbs the employment relationship by introducing the Designated Representative to purportedly represent the interests of DCWs regarding terms and conditions, and discuss these issues with the Department. The Executive Order also fosters collectivization by creating a process for electing a representative, and encouraging employee organizations to solicit DCWs for membership. An election occurred, and UHCWP was selected. Contrary to Respondents' characterization, Petitioners' injury is not confined to entering a MOU that may never occur.
These are concrete events that may be addressed through the courts, and do not call for an advisory opinion.
Turning to the merits, we examine the validity of the Executive Order.
Article IV, Section 2, of the Pennsylvania Constitution vests "[t]he supreme executive power" in the Governor, who "shall take care that the laws be faithfully executed." PA. CONST. art. IV, § 2. Separation of powers into the legislative, executive, and judicial branches is the foundation underlying our Constitution.
"The Governor's power is to execute the laws[,] and not to create or interpret them."
In
Respondents contend the Executive Order is permitted under the second category of orders, as a directive to subordinates, like the order in
In
In this context, a "subordinate" is "subject to the authority or control of another...." AM. HERITAGE DICTIONARY 1212 (2nd Coll. ed. 1985);
Considering applicability of the second category to the Executive Order here, we consider its terms. Section 2 establishes a new body, the Advisory Group, comprised of the Secretary and Deputy Secretary of the Department, with remaining members appointed by the Governor. Its purpose is to ensure the quality of home care services under the Participant Model. Its function is advisory only, and consists of policy-making. The Advisory Group is required to review and assess policies from a best practices perspective. This portion of the Executive Order arguably involves a directive to subordinates to gather information.
However, we conclude that Sections 3 and 4 of the Executive Order are not permissible executive actions under the second category. There are several reasons for this conclusion. First and foremost, factual differences between the current Executive Order and the Shapp Order render the
The primary difference is that of scope. The Shapp Order consisted of a communication, in the form of a discrete request, to existing subordinates. Specifically, the Shapp Order used the word "requesting" when it asked members of the Executive Branch to disclose their financial interests. By contrast, the Executive Order mandates
Second, from our careful reading, we conclude Sections 3 and 4 of the Executive Order do not merely direct subordinates. Rather, Sections 3 and 4 alter the employment relationship between DCWs and participants that occurs in a participant's home. This is accomplished by inserting the Department and DCW Representative into that relationship, with the goal of negotiating terms and conditions of employment without input by participants. DCWs are not subordinates of the Governor. UHCWP, the Designated Representative, is not a subordinate of the Governor. AAA is also not a subordinate of the Governor. Notwithstanding their status as non-subordinates, the Executive Order directs these providers and entities as part of the election, collectivization and bargaining process it creates.
Third, we are also unconvinced that Sections 3 and 4 of the Executive Order are merely a means of information gathering as Respondents assert. Indeed, information gathering is not mentioned. No part of Section 3, comprised of the election process, meet and confer process and MOU, consists of information gathering. Section 4 involves compilation of the DCW List, to enable an employee organization's representation as set forth in Section 3. Respondents do not persuasively explain why Sections 3 and 4, which do not involve any participant input, are primarily information gathering, as opposed to collective bargaining.
Fourth, Respondents do not explain why the Section 2 Advisory Group is inadequate for information gathering. Stated differently, Respondents do not identify information that can only be gathered through the "meet and confer" sessions, which include the Department and the Designated Representative, but exclude participants.
For all these reasons, we determine that Sections 3 and 4 of the Executive Order are not truly a means of providing information to Governor Wolf to assist Respondents in assessing quality of home care services.
Having determined that Sections 3 and 4 of the Executive Order do not fall within the second category of authorized executive orders, we consider whether the Executive Order is otherwise authorized under
Executive orders that qualify under the third category of executive orders are designed to implement or enforce a statute or other law.
Respondents cite no specific authority enabling the Executive Order. Further, we discern no authority that either specifically authorizes the Executive Order,
Petitioners argue the Executive Order creates new entities and processes that are inconsistent with legislative policy. They assert that through the Executive Order Governor Wolf does not enforce or implement existing law; rather, he exceeds his authority because the Executive Order makes law, a power reserved to the legislative branch.
Pursuant to
The PLRA is Pennsylvania's analog to the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169, setting forth an employee's rights. The PLRA allows defined employees to collectively bargain through an exclusive representative. Specifically, Section 5 of the PLRA permits employees to organize, including forming or joining a labor organization, to collectively bargain, and to engage in activities for the purposes of collective bargaining. 43 P.S. § 211.5.
Relevant here, DCWs are expressly excluded from the definition of employee in Section 3 of the PLRA. 43 P.S. § 211.3. It provides:
DCWs provide in-home personal care services. The clear policy decision by the General Assembly was to preclude the reach of collective bargaining to domestic service rendered to a person in his or her home. This policy choice, which is consistent with the long-standing "home as castle" trope in law and custom, is binding. It cannot be altered by executive order.
Further, PERA, which grants public employees the right to unionize, also does not confer collective bargaining rights on DCWs. DCWs are not Commonwealth employees; their employers are participants who are private parties. April Stip. ¶ 7.
Despite the definitional exclusion of DCWs from the PLRA and PERA, the terminology in Section 3 of the Executive Order is similar to the terminology contained in collective bargaining statutes, as discussed immediately hereafter.
The Executive Order provides an election and designation process for selecting the Designated Representative. It provides "[t]here shall only be one [DCW] Representative recognized at any time." E.O. at 5. Thus, the Designated Representative is the exclusive representative for all DCWs, and the Secretary shall only recognize one Designated Representative.
Under the PLRA, the chosen representative "
The Executive Order provides the Secretary, the Deputy Secretary and the Designated Representative "
PERA obligates the public employer and the employee representative to "
The NLRA explains collective bargaining as follows: "[t]o bargain collectively is the performance of the
Our review of statutes governing organized labor reveals the incongruence between the statutes and the Executive Order. By excluding DCWs from the definition of employees in the PLRA, the General Assembly chose to deny DCWs the ability to collectively bargain. By issuing the Executive Order, and encouraging DCWs' to organize collectively, Governor Wolf is essentially usurping that legislative power.
Significantly, the Executive Order bears striking similarities to an executive order Governor Edward Rendell issued in 2010 that pertained to DCWs (Rendell Order). Like the Executive Order here, the Rendell Order: created a process for organizing DCWs, including election of a union representative; established an advisory council regarding participant care; created a list of DCWs; and, authorized negotiations between the Department and the elected union representative. Also like the Executive Order, the Rendell Order did not mandate the parties reach an agreement. However, if the mandatory negotiations led to an agreement, the Rendell Order required any mutual understanding to be put in writing.
Similar to the present litigation, the participants and DCWs challenged the Rendell Order as an invalid abuse of executive power and sought to enjoin its implementation.
In terms of function, this Court recognized that any agreement resulting from the mandatory negotiations qualified as a collective bargaining agreement. Further, the Court noted that while DCWs were not Commonwealth employees, the agreement purported to create an employment relationship whereby the Commonwealth became the de facto employer.
Applying the persuasive Rendell Order reasoning to this case, we recognize that the current Executive Order's requirement that an employee organization and the Department meet and confer is the essence of collective bargaining. Indeed, the "meet and confer" phrasing in the NLRA and PERA mirrors that of the Executive Order. We conclude the Executive Order in effect grants collective bargaining rights to DCWs by empowering a Designated Representative as their exclusive representative.
Further, participants, the actual employers, are excluded from the meet and confer process, and there is no provision for their input. 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.
The self-serving disclaimers in Section 5 of the Executive Order do not save it from invalidity, for several reasons.
Second, the doctrine of separation of powers precludes the executive from directing or constraining a judicial function. Interpretation of official language to determine the legal effects of the language is a judicial function. While the executive can express his intent, he cannot direct how the judiciary shall interpret a legal document. This is especially true where, as here, there are operative provisions which contradict the claimed intent.
Next, we consider whether the Executive Order is capable of separation under the doctrine of severability.
Unlike Section 3, Section 2 of the Executive Order does not implicate collective bargaining or impose requirements in conflict with existing rights and duties. The Section 2 Advisory Group holds an advisory role only, designed to assist the Executive Branch in implementing the Home Care Programs under Act 150 and Medicaid waiver programs. As such, we are persuaded that Section 2 of the Executive Order falls within Governor Wolf's sphere of executive authority.
However, Section 4 (DCW List) is expressly integral to the election process set forth in Section 3(a), and thus depends on Section 3(a) for its operation. Therefore, Section 4 is not severable from Section 3. Similarly, those portions of Sections 1 and 5 derived from Section 3 are so interwoven with the invalid provisions so as to be non-severable and incapable of operation.
Applying the severability principle, we conclude that Section 2 of the Executive Order is self-sustaining. Therefore, we grant Respondents' application for summary relief as to Section 2, and we uphold its validity.
Governor Wolf exceeded his authority in issuing Sections 3 and 4 of the Executive Order. Most of the Executive Order does not merely implement or enforce existing law, so as to be authorized under the third category of executive orders in
For the foregoing reasons, we grant Petitioners' application for summary relief in part, and we declare Sections 3 and 4 of the Executive Order invalid and void. Parts of Section 1 (definitions of DCW List and Direct Care Worker Representative) are also invalid.
Judge Covey did not participate in the decision in this case.
Sections 1(d) and (e), 3, 4, and 5(b) through (g) of Executive Order 2015-05 are hereby declared
DISSENTING OPINION BY JUDGE WOJCIK
I respectfully dissent. The well-written majority opinion disposing of the parties' applications for summary relief
As the majority sets forth, the PLRA is Pennsylvania's analog to the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169. Both the PLRA and the NLRA authorize "employees" to self-organize, to form, join or assist labor organizations, to collectively bargain, and to engage in activities for the purposes of collective bargaining. Section 5 of the PLRA, 43 P.S. § 211.5; 29 U.S.C. § 157.
However, both the PLRA and NLRA exclude individuals employed in "domestic
43 P.S. § 211.3 (emphasis added).
However, the PLRA does not define "domestic service." When words of a statute are undefined, they must be construed in accordance with their common and approved usage. Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a); Adams Outdoor Advertising, L.P. v. Zoning Hearing Board of Smithfield Township, 909 A.2d 469 (Pa.Cmwlth. 2006). "Where a court needs to define an undefined term, it may consult definitions in statutes, regulations or the dictionary for guidance, although such definitions are not controlling." Adams Outdoor, 909 A.2d at 483; see THW Group, LLC v. Zoning Board of Adjustment, 86 A.3d 330 (Pa. Cmwlth.), appeal denied, 627 Pa. 776, 101 A.3d 788 (2014).
Pennsylvania courts have examined the term "domestic service" in other labor and employment contexts. For instance, Section 321 of the Workers' Compensation Act (Act)
In Jack v. Belin's Estate, 149 Pa.Super. 531, 27 A.2d 455, 457 (1942), our Superior Court held the gardener of a household estate was engaged in domestic service for purposes of the Act. The Court explained
Jack, 27 A.2d at 457 (emphasis added).
Similar to the Act, the Pennsylvania Minimum Wage Act of 1968 (MWA)
34 Pa. Code § 231.1(b).
In Bayada Nurses, Inc. v. Department of Labor and Industries, 607 Pa. 527, 8 A.3d 866, 883 (2010), the Supreme Court was asked to interpret the "domestic services" exemption of the MWA's overtime provisions. The Court observed that the language of the MWA is consistent with the same exemption provided in Section 213(a)(5) of the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 213(a)(15), which does not prohibit an exemption for agency employment. The healthcare provider argued the two statutes should be interpreted in pari materia, and that the federal approach should govern, permitting agency employers to benefit from the domestic services exemption. The Court disagreed. Although the MWA and FSLA contain nearly identical exemption language, the Court explained the federal exemption relating to "domestic services" was more expansive than the state regulation. Id. at 871, 877-78. The Court ruled that the state exemption was only meant to cover individuals directly employed by the householder, not those who were employed by third party agencies. Id. at 883. The Court held the FLSA does not supersede state law and Pennsylvania may enact and impose more generous overtime provisions than those contained under the FLSA. Id. Thus, the Court rejected the argument that the domestic services exemption in the MWA should be construed in pari materia with the FLSA. Id.
Similarly, in Blue Mountain Mushroom Company, Inc. v. Pennsylvania Labor Relations Board, 735 A.2d 742, 748 (Pa. Cmwlth.1999), appeal denied, 567 Pa. 716, 785 A.2d 91 (2001), this Court rejected the notion that, because the PLRA was patterned after the NLRA, Pennsylvania courts must adhere to federal interpretation. There, we examined whether the term "agricultural laborer" pertained to mushroom workers. "Agricultural laborers," like domestic service workers, are excluded from the definition of employee under both the PLRA and the NLRA. 43 P.S. § 211.3; 29 U.S.C. § 152(3). Although mushroom workers were historically considered horticultural workers, in 1947, Congress directed the National Labor Relations
To date, there has been no statutory or regulatory expansion of the term "domestic service" under the PLRA to include personal care services, such as nurses, home health aides or personal care aides. But cf. 29 C.F.R. § 552.3 (federal regulation under the FLSA now includes "nurses," "home health aides" and "personal care aides" in the definition of "domestic service employment").
According to Governor Thomas W. Wolf's Executive Order, No. 2015-05 (Executive Order), DCWs are individuals who provide "Participant-Directed Services," which include:
Section 1(i) of the Executive Order. DCWs provide "in-home personal care service" through home care service programs, such as the Attendant Care Services Act (Act 150).
Act 150's definition of "Attendant care services" embraces both personal care and domestic-type services. Specifically, Section 3 of Act 150 provides:
62 P.S. § 3053 (emphasis added). Under Act 150, domestic-type services are ancillary to personal care. Id.
Significantly, it is the provision of domestic service that would exclude DCWs from the collectively bargaining table under the PLRA, not the provision of personal care. See Section 5 of the PLRA, 43 P.S. § 211.5. At this juncture, it is unclear whether the DCWs provide ancillary services akin to "domestic services" or just basic personal care services akin to that of a nurse's aide. If the DCWs are "serving the needs of the household," then the majority properly declared portions of the Executive Order invalid and void as contrary to statutory law. If, however, the DCWs are more like nurse's aides, providing personal care (as opposed to household) services, then the Pennsylvania Labor Relations Board would presumably have jurisdiction over the subject matter at issue and we would analyze the Executive Order from that perspective. As more facts are needed to determine the DCWs' legal status, I would deny summary relief and allow the case to proceed to trial.
29 U.S.C. § 152(3) (emphasis added).
