Home Health & Hospice Week

Warning: Don’t expose yourself to financial risk.

The distinction between an employer that’s affected by wage and overtime law requirements and a registry that is not is more clear, thanks to a new federal bulletin.

Background: “The Obama administration … classified workers found through registries as employees of the registries themselves and therefore covered by overtime and minimum wage laws,” explains the National Association for Home Care & Hospice. “However, the Department of Labor withdrew that guidance in 2017 after inauguration of the Trump administration.”

Now a July 13 field assistance bulletin from the DOL Wage and Hour Division walks through its reasoning on “Determining Whether Nurse or Caregiver Registries are Employers of the caregiver.”

Watch out: “The implications of improperly identifying caregivers as non-employees when they are, in fact, employees as determined by the WHD creates significant financial implications,” warns consulting firm The Health Group in Morgantown, West Virginia.

“Consistent with WHD’s longstanding position, a registry that simply facilitates matches between clients and caregivers — even if the registry also provides certain other services, such as payroll services — is not an employer under the [Fair Labor Standards Act],” the bulletin notes. “A registry that controls the terms and conditions of the caregiver’s employment activities may be an employer of the caregiver and therefore subject to the requirements of the FLSA.”

The bulletin lists examples and circumstances in a number of areas ranging from background checks to scheduling working hours to purchasing equipment and supplies.

For example: “A registry’s performance of … basic or legally required background checks by itself does not indicate that the registry is an employer of the caregiver,” the bulletin clarifies. But interviewing the caregiver further for likeability or being a good fit for the patient is “additional, subjective screening” that “may indicate that the registry is the caregiver’s employer,” it says.

“The bulletin is very helpful in identifying those specific instances which could cause an employment relationship to exist,” praises The Health Group. But the bulletin stresses that decisions are made on a case-by-case basis.

Do this: Therefore, “we recommend that legal counsel experienced in employment-related matters be consulted before making any definitive conclusion regarding your employer-employee relationship,” The Health Group says in its newsletter. “Remember, even [referring] to a caregiver as an ‘independent contractor’ or issuing caregivers a 1099, rather than a W-2, may not be consistent with a conclusion drawn by the WHD,” the consulting firm cautions.

Resource: See the bulletin at www.dol.gov/whd/FieldBulletins/fab2018_4.htm.