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Staffing:

PROTECT YOUR INTERESTS WHILE COURTS WEIGH LABOR LAW EXEMPTION

Published on Mon Aug 14, 2006

Step #1:  Be sure you're complying with current law.

Plaintiffs' attorneys are prowling for labor law violations--and with federal law in a state of flux on wages for home health aides, your litigation risk is even greater.

To stave off costly legal action and make sure you're well positioned for the future, take these steps:

1. Tread carefully if you're in New York, Vermont or Connecticut. The Sept. 1 decision of the U.S. Court of Appeals for the Second Circuit is likely to carry the force of law soon for agencies in those states, though industry representatives were still conferring at press time on how to advise agencies. Look for updates in coming issues of Eli's Home Care Week.

2. Hold onto the exemption if you're in other states. Staff who work in states other than New York, Connecticut and Vermont should carry on employing the companionship exemption as allowed by state law, advises Jonathan Greenbaum, an attorney with Nixon Peabody in Washington, DC.

3. Know if your agency is exempt altogether. Smaller agencies may not need to concern themselves with the FLSA at all, reminds John Gilliland II of Gilliland Markette & Milligan in Indianapolis in an article on the topic. Generally, an agency is subject to the FLSA if it grosses more than $500,000 per year, is a part of a hospital or nursing home, or is part of a public entity, says Gilliland.

Caution: Agencies that are not subject to the FLSA may need to comply with a similar state law.

4. Review your state statutes. Another reason to review state statute: Be sure you are savvy about other requirements. Maryland, for example, allows not-for-profits to take the federal companionship exemption but prohibits for-profit HHAs from doing so.

5. Keep excellent records. The services furnished by the aide must constitute companionship services, Gilliland explains in an article about the exemption. Regulations define those as "services which provide fellowship, care and protection for a person who because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services."

Particularly important is making sure the employee performs the services for the client and not for other household members, Gilliland instructs.

In addition, you'll need to be able to show that household work was limited to no more than 20 percent. "Have aides complete a checklist, noting how they spent their time," advises Greenbaum.

Compliance tip: Don't define "home" too broadly. "The companionship exemption applies only when the services are provided in a client's home," counsels Greenbaum. Settings that are definitely out include hospitals, nursing homes, group home, and assisted living facilities.

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