Fall 2018

18 HCAOA The Voice PUBLIC POLICY ON JULY 13, THE U.S. DEPARTMENT OF LABOR (DOL) issued a Field Assistance Bulletin (FAB) providing guidance to Wage and Hour Division (WHD) field staff to help them determine whether home care, nurse, or caregiver registries (registries) are employers under the Fair Labor Standards Act (FLSA). The guidance states that “Con- sistent with WHD’s long standing position, a registry that simply facilitates matches between clients and caregivers—even if the registry also provides certain other services, such as payroll services—is not an employer under the FLSA. A registry that controls the terms and conditions of the caregiver’s employment activities may be an employer of the caregiver and therefore subject to the requirements of the FLSA. To ensure consistent enforcement, this FAB provides specific examples of common registry business practices, which may, when the totality of factors is analyzed, establish the existence of an employment relationship under the FLSA.” The FAB details that a registry may confirm caregiver credentials, conduct background checks, contact professional references, and engage in other quality-control measures. A registry also typically obtains information from the caregivers about the type of work they are willing to perform, their target compensation, their availability, and other personal preferences when working with clients. A registry may also interview the client to learn, for instance, the amount and type of services the client needs, the client’s budget, and the client’s personal preferences. After a client provides such information, the registry usually identifies previously screened caregivers who meet the requirements for the job and facilitates an introduction. After the introduction, the caregiver and/or the client have no obligation to accept the referral. The registry may refer numerous potential caregivers to a client. A registry may act as the liaison between the caregiver and the client but does not typically negotiate the terms or conditions of the job on either party’s behalf. For some registries, when a client accepts one of the registry’s referrals, the registry does not usually thereafter con- trol the financial terms or conditions of the home care relationship. Nor does the registry typically control, supervise, or provide training or equipment to the caregiver. Rather, after the match occurs, it may be the client’s responsibility to manage the care. The client may determine, among other things, the type of care provided, the caregiver’s rate of pay, and the caregiver’s hours. The client and the caregiver are free to change the terms and conditions of their relationship at any time. DOL Issues Guidance on Classification of Home Care Workers