Home Care and Nursing Registries Are Subject of New Independent Contractor Guidance

From JDSupra, Richard Reibstein discusses the Field Assistance Bulletin issued by the United States Department of Labor relating to home care and nursing registries. Richard writes:

The guidance issued today was in the form of a Field Assistance Bulletin from the Acting Administrator of the Wage and Hour Division of the U.S. Department of Labor to its top enforcement administrators and directors across the country. Entitled “Determining Whether Nurse or Caregiver Registries are Employers of the Caregiver,” the Bulletin provides guidance in determining if and when caregiver and nurse registries are deemed to be employers under the federal Fair Labor Standards Act.
What Does the Field Assistance Bulletin Say?
The types of registries covered by the Bulletin are those that facilitate matches or referrals between clients and caregivers. The Bulletin tells federal Wage and Hour Division personnel that such registries may engage in the following actions that they should not regard as indicative of an employment relationship:
conducting background screening;
verifying credentials of potential workers;
matching a client’s threshold preferences with a potential caregiver;
introducing the caregiver to the client;
informing the client and caregiver about typical rates in the local area to serve as a benchmark for negotiations;
relaying communications, offers, or counteroffers between the client and prospective caregiver;
collecting time sheets from caregivers or offering caregivers the use of the registry’s electronic time verification system;
handling payroll services;
affording caregivers the opportunity to purchase discounted equipment or supplies from the registry or a third party;
requiring an Employer Identification Number (EIN) issued by the IRS, or insurance, or a bond required by law; and
compliance with mandatory requirements of the law.
The Bulletin, however, makes it clear that certain types of activities engaged in by caregiver registries will result in a finding of employer status. For example, interviewing a prospective caregiver to determine if he or she is “likeable” or will “work well with a particular client” will be regarded as an indicator of employment in contrast to merely “performing basic quality control and verification checks.” Determining whether one caregiver is likely to “do a better job” than another caregiver is cited as yet another indicator of employment status.
Other indicators of employment status mentioned in the Bulletin include setting policies that require a caregiver to provide services in a particular way; requiring a caregiver to accept a job with a particular client; visiting the home to monitor a caregiver’s behavior; conducting performance evaluations of the caregiver; setting policies for a caregiver’s time off from work; requiring the caregiver to use only the registry; disciplining a caregiver for his or her performance; limiting the number of clients to whom a caregiver may provide services; restricting a caregiver’s hours; prohibiting a caregiver from registering with other referral services; or prohibiting a caregiver from working with his or her own clients outside of the registry.
The Bulletin concludes with a statement that the Wage and Hour Division will “consider the totality of the circumstances” to evaluate whether an employment relationship exists between a registry and a caregiver. A Labor Department spokesperson reportedly stated that the Bulletin is not meant to apply to other industries and is tailored solely to homecare registry operators.
Analysis and Takeaways
This new Bulletin demonstrates that the U.S Department of Labor is prepared to provide useful guidance to an industry that has been subject to uncertainty over whether an independent contractor model for homecare and nursing registries is permissible under the federal wage and hour law. The Bulletin takes great pains not to favor businesses or employees but rather attempts to provide a fair and balanced assessment of which factors are indicative of employment and which favor independent contractor status.
The Labor Department’s assessment, though, misses the mark in at least one key respect. The Bulletin states that a registry’s decision to terminate a caregiver “for failing to comply with the requirements and standards established by the industry, the client, or the law” indicates that the registry is an employer of the caregiver. This view is contrary to many court decisions under the FLSA involving a variety of industries. Certainly, if a registry has reason to believe that a caregiver has engaged in theft of a client’s possessions, has mentally or physically abused a client, permits obvious tripping hazards to remain in the home of an elderly client who has ambulatory issues, or repeatedly refuses to comply with a reasonable request of a client such as not to overheat meals, virtually every homecare registry would terminate its relationship with the caregiver. Such responsible action on the part of a registry should hardly be regarded as indicative of control indicating an employment relationship.
While the new Bulletin provides considerable guidance to home care and nursing registries using an IC model, it does not address the legal significance of a registry’s documentation in determining the validity of an IC model. As noted in our White Paper, proper documentation of an IC relationship is instrumental in an effort to maximize compliance, and is an integral part of any process used by a business in seeking to minimize IC misclassification liability.