A broad prohibition against classifying temporary nursing staff as independent contractors could threaten healthcare delivery for millions of vulnerable patients as firms that place those nurses help fill a critical need amid shortages in healthcare workers, according to a letter sent Oct. 10 by the Workplace Policy Institute at law firm Littler Mendelson. It could also limit options for healthcare organizations looking for temporary staff.

The letter calls on the US Department of Labor not to apply a one-size-fits-all requirement, citing differences in business models between traditional staffing firms and online staffing platforms.

The request comes after a coalition of 30 staffing companies in August called for the Department of Labor to issue an opinion letter requiring temporary nurse staff to be classified as employees rather than independent contractors. It said a half dozen tech-enabled firms began classifying the nurses sourced through them as independent contractors during the pandemic and argued that shouldn’t be the case. It also raised concerns about the level of oversight needed for temp nurses to ensure proper care and that independent contractor classification could prevent nurses from receiving benefits like overtime pay and workers’ compensation.

The new Oct. 10 letter argued that an overbroad regulatory decision to prohibit classification of nurses as independent contractors would be applied to firms with disparate business models instead of making a determination based on facts.

“First, the request presumes that all businesses which connect healthcare providers to facilities — ranging from brick-and-mortar healthcare ‘staffing agencies’ to staffing platforms which simply allow healthcare providers to connect with facilities in need of staff — operate in the same fashion,” Little Mendelson’s letter states. “They do not, and the manner in which many staffing platforms operate demonstrates that nurses using their platform to locate, evaluate and bid on shifts are properly classified as independent contractors under the FLSA.”

It also argued the issue of independent contractor misclassification under the Fair Labor Standards Act is currently the subject of pending rulemaking, and new rules could render an opinion letter moot.

Littler Mendelson’s letter lists several reasons temporary nurse staff working through staffing platforms — as opposed to traditional staffing firms — qualify as independent contractors. Factors include nurses on platforms having complete control over when and where they work and what type of pay they will accept. In addition, the platforms don’t control how nurses work. The letter also noted independent nurses are responsible for almost all costs and expenses associated with their ability to provide care — ranging from scrubs and equipment to licensing fees and ongoing education requirements.

“In general, an independent nurse creates a profile on the staffing platform, including but not limited to their name, contact information, work experience, certifications and licensing information,” according to the letter. “A healthcare facility, such as a post-acute care facility, posts shifts for which it needs nursing services and the rate of pay for those shifts. Nurses are then able to select facilities and shifts based on their availability and their assessment of the profitability of a shift and seek to fill the opening.”

Staffing platforms have also been categorized as separate from staffing firms in several states. The letter cited examples from several states, including 2022 legislation in Colorado.

“The [Colorado] legislature defined the term and excluded it from the broader nurse agency regulations,” according to the letter. “A healthcare worker platform is defined as ‘any person, firm, corporation, partnership or association that maintains a system or technology that provides a media or internet platform for a healthcare worker to be listed and identified as available for hire by healthcare facilities seeking healthcare workers. Under a platform, the healthcare facility sets the hourly rates and other terms of hire, and the healthcare worker as an independent contractor and not as an employee or agent of the entity that maintains the platform decides whether to agree to the hourly rates and other terms of hire.”

Littler Mendelson’s Workplace Policy Institute aims to facilitate the employers’ engagement in legislative and regulatory developments, according to the letter. The letter also noted that Littler Mendelson’s clients includes staffing platforms.