If ever there was a time owners and operators of home care agencies should be familiar with the ins and out of labor law, it is now.
There are a lot of laws regarding minimum wage and wage transparency at play at the federal level, as well as in cities, states and municipalities, Angelo Spinola, attorney for the home care law firm Polsinelli, said at a Thursday webinar hosted by Polsinelli, MissionCare Collective and Viventium entitled 2023 Caregiver Wage Webinar: Legalities, Transparency & Inspiration.
“That makes it extraordinarily difficult for the provider, particularly a provider that’s in more than one state, to keep up with all the changes,” he said.
Making it even harder is the industry-specific focus of many these laws, leading to compliance issues. As an example, Illinois has a Domestic Workers’ Bill of Rights. Cook County also has Domestic Worker Rights laws. The two are different.
“There is a lot of confusion out there and then you see attorneys taking advantage of that confusion by bringing enforcement actions,” he said.
His advice regarding conflicting laws: Follow the one most favorable to the worker.
Death of the noncompete
Retention is a major hurdle in home care today. The biggest lab law change affecting home care staffing retention? The death of the noncompete agreement, Spinola proclaimed during the webinar. There have been a lot of actions at the state, city and now national level dismantling restrictive covenants such as non-compete and non-solicit agreements. As a result, home care operators need to focus now more than ever on incentivizing their workforces — the carrot rather than the stick, he noted.
“The other way is not working,” he said.
In a recent example, New York state fined a home care firm $550,000 for signing an agreement with a competitor prohibiting the two from taking each other’s patients.
Unfortunately, incentives can come with administrative strings. A formal gift card program — admirable as it may be — needs to be incorporated in overtime calculations, wage, payroll taxes, et.
“It creates administrative issues around trying to incentivize the workforce,” Spinola noted.
Labor actions at federal level
At the federal level, it’s been hard not to notice the major crackdown on home care operators. Most recently, the Department of Labor has proposed a rule making it easier to misclassify employees as independent contractors — a direct hit to home care.
The DOL said in November its crackdown on the care industry since last year has resulted in more than $1.3 million in penalties against providers and $28.6 million in back wages for nearly 25,000 workers. It also said it has conducted more than 1,600 investigations and found violations in 80% of its reviews.
Spinola pointed out that home care agencies are now confronting a “more sophisticated type of lawsuit” that focuses on specific wage violations such as not paying for travel between client visits.
The bottom line may just be that home care agencies cannot win. When the winds are blowing against big business, the best course of action may be to keep your head down and wait for the weather (or administration) to change.
Liza Berger is editor of McKnight’s Home Care. Email her at [email protected].