I have defended dozens of nursing homes, home health services, residential care centers and other health care providers in audits of their wage practices by the US. Department of Labor (“DOL”) and state DOLs. I have come to learn that there are unique wage hour issues and challenges in this industry and that many well-meaning employers, seeking to comply with the law, step on regulatory landmines and end up in trouble.
Well, buckle up. The USDOL is stepping up its audit/enforcement efforts in this industry, which it believes is rife with violations. (And, it is right!) This follows the 2021 implementation of a nationwide scrutiny; this has, to date, resulted in almost 2000 investigations, recovery of almost $30,000,000 in back wages and more than $1,000,000 in agency-imposed penalties, i.e., Civil Money Penalties.
The biggest issue is failure to pay overtime or keep proper records but there has been a surge in DOL litigations alleging misclassification violations, i.e., misclassifying people as independent contractors. The data shows that the Southeast (e.g., Alabama, Florida) is being focused on but that enforcement “cloud” will certainly spread to all parts of the country. In these audits of southern facilities, the agency found violations in 90% of the audits undertaken. More than $16,000,000 in back wages has been secured for more than 13,000 workers.
The DOL warns that employers should “review their pay practices to ensure they comply with the law.” These practices...
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