Home Health & Hospice Week

The DOL has issued a number of sample employment agreements for domestic workers, including home care workers. “The use of these sample agreements is not required by law,” the Department takes pains to point out on its website. Instead, they “reflect topics that employers and employees may voluntarily choose to address,” it offers.

Background: In April 2023, a Presidential Executive Order (EO) mandated an increase in care and support for direct care workers and family caregivers. Specifically, the order called for the Secretary of Labor to create and publish compliance assistance and best practices resources, which led to this new tool.

The DOL extols the benefits of using employment agreements, including that they provide:

• clear standards, expectations, and responsibilities of both parties;
• open discussion between employers and workers about the terms of employment;
• opportunity to plan for and reduce future misunderstandings or conflict;
• definition of specific needs, skills, and circumstances in the agreement; and
• strengthening of the relationship and trust between the employer and worker.

Acting Secretary of Labor Julie Su commented at a recent gathering, “In the past, too many care workers haven’t had an agreement as they started their job to set their responsibilities or their rate-of-pay or the quality of their working conditions.” These agreements will help “establish clear standards, expectations, and responsibilities so all parties know what they’re getting into,” she said.

“These agreements … provide some insight into what the DOL thinks should be clearly articulated in any employment relationship,” notes attorney Fiona Ong with law firm Shawe Rosenthal in online analysis.

Such agreements may help stem employee complaints that could spark investigations and lawsuits, experts suggest.

Remember, DOL Wage and Hour Division “has been intensifying its pursuit of Fair Labor Standards Act violations by residential care facilities, nursing facilities, home health and home care services and other care-focused industry employers where it believes that low wages and high rates of violations are prevalent,” attorney Angelo Spinola with law firm Polsinelli notes in online analysis. “According to the DOL, from 2020 to 2022, WHD investigators identified violations in nearly 89 percent of more than 1,200 home care and nursing care investigations in the Southeast, which led to its recovery of more than $16.2 million in back wages and liquidated damages for more than 13,000 workers, in addition to the assessment of more than $150,000 in civil money penalties against employers,” Spinola highlights.

If you choose to develop your own agreement, the DOL provides some suggested good practices to consider. Those include reviewing the contract with your workers to resolve any questions and ensure an understanding and full agreement on the terms.

The sample agreement covers a wide range of topics including pay and benefits; overtime; use of surveillance such as cameras; notice requirements for schedule changes; leave benefits; and workplace health and safety issues.

Tip: “At-will employment is presumed, and to the extent an agreement is used, employers should reiterate the at-will nature of any employment relationship,” Ong advises.

And remember, “there may be state and local laws that provide additional protections and requirements,” Ong adds. 

Note: See the DOL’s guidance online at www.dol.gov/agencies/wb/Domestic-Workers. The 12-page sample agreement is at www.dol.gov/sites/dolgov/files/WB/DWSA/ HomeCareWorkersSampleEmploymentAgreement.pdf.