The US Department of Labor’s Wage and Hour Division released new guidance last week [1] to help investigators figure out whether home healthcare workers are employees of home healthcare registries or independent contractors. However, several reports indicate that, although the guidance is focused on home healthcare workers, it could indicate the administration’s thinking on independent contractor compliance.
“Although this bulletin applies only to home health agencies, it may provide clues as to how the Trump-era DOL will handle the vexing topic of whether to classify certain workers as employees or independent contractors,” law firm Ballard Spahr wrote in a blog post [2].
Home healthcare registries typically match home care providers such as nurses, home health aides and others with people who need assistance. However, the type of services offered by registries can vary and impact whether the home health worker is an independent contractor or employee
For example, if the home healthcare registry controls how the home healthcare worker provides services, that could be an indication of an employer-employee relationship. But if the registry simply matcher workers with patients and let them hammer out details of the payment — even if the registry provided payroll services — that would not be indicative of such a relationship.
Several examples of such factors and whether they indicated an employee or independent contractor relationship — were included in the guidance, called a “field assistance bulletin.”
It noted the totality of factors should be taken into account when determining whether a home health worker is an employee or independent contractor.
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,” according to the bulletin’s conclusion. “Because the analysis does not depend on any single factor, and because caregiver registries operate in a variety of ways, WHD will evaluate all factors to reach appropriate conclusions in each case.”
Sen. Marco Rubio, R-Fla., had raised concerns in February about independent contractor misclassification as it relates to home healthcare and asked the department to look into it, saying inspectors were using guidelines from the previous presidential administration.
“Stakeholders in my state have reported that personnel within the Wage and Hour Division and Solicitor’s office were still applying the prior administration’s guidance on joint employment and independent contractors months after you withdrew the guidance,” Rubio wrote in his February letter [3].