The independent-contractor pendulum in home-based care could be swinging back in favor of pro-union policies. Providers should take note of potential changes coming down the pike.
For instance, there are currently proposed changes that would have an impact on the test used to determine whether someone is an independent contractor or an employee. Those changes would – in part – affect the analysis of whether a potential employer is exerting control over a caregiver.
Firstly, providers should be aware they can still be sued for improperly classifying a worker as a contractor under the Fair Labor Standards Act (FLSA), Emina Poricanin, managing attorney of the New York-based Poricanin Law, told Home Health Care News.
“Providers should stay on top of the issue, but keep in mind that – irrespective of the final regulation on independent contractors – they can still be sued under the FLSA or other state laws,” Poricanin said. “Those state laws provide, in some cases, greater worker protections in wage and hour than the federal government does.”
In October, the U.S. Department of Labor (DOL) issued that proposed rule, which would also apply to potential employers that include registries, virtual marketplaces or consumer-directed agencies.
The proposal is a significant shift from a few years ago under the Trump administration.
Under the former administration, there was a modification to the independent contractor test, which is the economic realities test under the FLSA.
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