When it comes to labor and wage matters, home care agencies are in for a bumpy ride. The Department of Labor under President Biden is cracking down on home care and home health agencies that violate the Fair Labor Standards Act, according to Angelo Spinola, an attorney that represents agencies for Polsinelli, a law firm.
“We are seeing an uptick in targeted audits,” Spinola said Wednesday during a webinar sponsored by the National Association for Home Care & Hospice. The webinar was the sixth this year in a series on legal topics affecting home care.
The DOL under Biden seeks more protections for workers, is concerned with the classification of independent contractors, focuses more on enforcement and less on communication, and undergoes more targeted audits of industries it deems as high-risk such as home care and home health, he said.
The current department is similar to that under the Obama administration, with the “same agenda, same talking points, same personnel,” Spinola noted.
It already has reversed employer-friendly regulations from the Trump era, he explained. For example, early on, the department disclosed that it was discontinuing the Payroll Audit Independent Determination (PAID) program. The program allowed employers to self-report wage and hour violations to the DOL with the agreement that the DOL would supervise a settlement and not seek liquidated dames or impose penalties.
Then in recent months, the department has withdrawn two other Trump rules: Independent Contractor Status Under the Fair Labor Standards Act and Joint Employer Status Under the Fair Labor Standards Act. Both reversals have implications regarding whether a company is considered an employer under the FLSA and, therefore, must submit to minimum wage, overtime and record-keeping requirements.
Spinola noted that rescinding the independent contractor and joint employment rules points to the DOL’s emphasis on creating joint employers for overtime and wage/hour issues to be able to establish liability across a broader platform and, thus, achieve higher judgments and back wages “with less effort,” Spinola said.
In the hourlong webinar Spinola also talked about the leanings of the DOL leadership. Marty Walsh, the secretary of labor, has ties to unions so there likely will be an increased interest in unions and union organizing. And home care agencies should keep a watchful eye on the presumptive wage and hour administrator, David Weil. Under the Obama DOL, in which he had the same role, he regularly targeted companies that used independent contractors, including in home care, and honed in on franchise businesses. Weil has yet to be confirmed.