Fall 2018

19 Fall 2018 PUBLIC POLICY In addition to providing matchmaking services, a registry may provide admin- istrative services to the caregivers and clients. These services include recordkeep- ing, invoicing, collecting and disbursing payments, and other administrative services that are ministerial in nature. Most registries charge an administrative fee for the referral services and the ongoing administrative services. Some registries require a lump-sum payment from the client for the referral. While DOL was clear to demonstrate what a typical registry can do to maintain its registry status the DOL was clear to state: “This FAB refers to 'registries' for simplicity and to reflect common terms used in the industry. The FLSA does not define the term 'registry.' The title an entity uses does not determine whether it is obligated to comply with the FLSA; instead, the particular facts and circumstance outlined herein control. Additionally, WHD does not recommend or prefer any business model of providing home care services, nor does it offer advice concern- ing how entities should choose to conduct business. Rather, WHD is issuing this FAB to explain how it determines whether a registry is an employer of caregivers under the FLSA.” Of particular note, section D, Controlling the Caregiver’s Work of the FAB, the WHD provides some clarity on the limitations of registries to provide oversight over the quality of care that is a critical prerequisite standard in the provision of home care services. The FAB states unequivocally that a care- giver may not receive any instruction from the registry about how to care for clients. The registry may not, for example, instruct caregivers how to provide caregiving services, monitor or supervise caregivers in clients’ homes, or evaluate caregivers’ performance. The absence of such control indicates that a registry is not an employer of the caregiver. On the other hand, a registry may provide training and control the caregiver’s services after making the referral. Control over the caregiver services indicates that the regis- try is an employer of the caregiver. Exam- ples of such control include setting policies that require a caregiver to provide services in a particular manner; requiring a caregiver to accept jobs with specific clients; visiting the client’s home to monitor a caregiver’s behavior; conducting performance evalu- ations of the caregiver; setting policies for a caregiver’s time off from work; requiring a caregiver to call only the registry, instead of the client, if the caregiver will be late or miss a shift; and disciplining a caregiver for his or her performance. Control Over the Caregiver Services Indicates that the Registry is an Employer of the Caregiver Furthermore, the FAB provides additional examples in which a registry may control a caregiv- er’s behavior and additionally restrict the caregiver’s ability to independently generate profit and loss—such as limiting the number of clients to whom a caregiver may provide services, limiting the care- giver’s hours, prohibiting a care- giver from registering with other referral services, or prohibiting a caregiver from working directly with clients outside of the registry. If these are activities a registry is engaged in, the FAB clearly states that “the exercise of control over caregivers indicates the existence of an employment relationship.” HCAOA has contended that critical standards of care and operations to ensure quality home care ser- vices, performed by a third party provider, can only be performed when an employment relationship exists. In many ways, the clarifica- tion this FAB provides reinforces our position and HCAOA members should utilize this information to call attention to this issue with your regional DOL office if you sus- pect an entity like a registry may be misclassifying its workers. HCAOA members can read the com- plete guidance on the DOL website, https://bit.ly/2vzOWR1.