Pay practice claims brought forth by current or former workers at home health agencies are nothing new, but as the health care landscape shifts under the Trump administration, agencies need to be sure they are protecting themselves from potential lawsuits.
President Donald Trump does not hide the fact that he is against many regulations that add extra compliance steps for growing businesses. For home health businesses, relaxing some regulations and standards could be beneficial, but these ideals don’t change where things are right now, Angelo Spinola, employment litigator and shareholder at labor law practice Littler Mendelson, said during a webinar hosted by the firm last week.
For home care providers that employ independent contractors, there is a lot of room for lawsuits due to the workers’ status and potential vulnerabilities for agencies that aren’t covering all their basis with specific policies, like electronic timekeeping.
“For independent contractor status [within the home care industry], even if the government does relax some standards…it doesn’t change the laws on the books right now,” Spinola said. “It could be something down the road, but not right now. When you look at cases, a judge will interpret the law right now, not the facts of what could be coming.”
Home health agencies may think they can worry less about court cases and Fair Labor Standards Act (FLSA) violations with Trump in office more than if Hillary Clinton was in office, but there is only a half truth to that, Spinola added.
Commonly Challenged Issues
It doesn’t matter if an agency has 50 caregivers or 10,000 caregivers, there are certain things that every agency can do to be completely compliant and avoid any loopholes that could result in a lawsuit, said Spinola.
“Home care is a No. 1 target for pay practice claims because we are not compliant enough,” he explained. “The quicker we can all become compliant, the quicker this issue can move to another industry.”
Some of the issues most challenged by home care workers in court include:
- Missed or interrupted meal times
- Travel time to and from patient locations
- Rounding up time entries/improper time edits
- Failure to reimburse for mileage
- Failure to pay for orientation, meeting time, etc.
To avoid these potential issues altogether, policies that agencies should enact for non-exempt employees could include:
- Prohibit off-the-clock work
- Explain overtime eligibility and meal/rest periods clearly
- Share compensation for travel time
- Require that all working time must be recorded down to the minute (no rounding)
“When it comes to wage hour issues, you actually have to be able to prove what happened,” said Spinola. “It’s not about what is actually happening. If you don’t have the proven facts from tracking, the employee is always given the benefit of the doubt.”
It is the agency’s job as an employer to keep data that tracks everything. Even if agencies don’t do a full-blown compliance program, implementing some of these policies can serve as protection in the long run, Spinola added.
Written by Alana Stramowski