The Home Care Association of America (HCAOA) and the California Association for Health Services at Home (CAHSAH) are suing the state of California over a policy that gives labor unions access to caregivers’ personal information for the purpose of organizing.
In their suit, the plaintiffs, represented by Littler Mendelson, claim that the state policy is unconstitutional, as labor organizing is regulated by federal law through the National Labor Relations Act, which the United States Supreme Court found constitutional in 1937.
“We have no general concern with the fact that we have organizing laws in this country that allow for unions to organize,” Phil Bongiorno, Executive Director of HCAOA, told Home Health Care News. “However, going about it in this manner is something we have a concern with: usurping the federal law and developing a process that doesn’t protect caregiver privacy.”
The suit comes following a legal change that went into effect July 1. It allows labor unions to access caregivers’ contact information via the California caregiver registry, which was originally created to give families the ability to check their caregivers’ qualifications.
But because of the new policy, the plaintiffs worry the registry will now do more harm than good.
“We’re concerned about caregiver privacy,” Bongiorno said. “Even though caregivers do have an opt-out process here, they’re defaulted to opt in.”
To opt-out of having their information shared, caregivers must fill out a form on the California Department of Social Services website. Upon each recertification, they must repeat the process.
Bongiorno worries the hassle, along with privacy concerns, could deter people from entering the industry, which is plagued by an 82% caregiver turnover rate to begin with.
“That’s a big concern,” Bongiorno said. “Just imagine someone has your cell and personal number, and they can call you at any time. There’s no restrictions on what unions can do.”
Even before the change took effect, industry insiders in California voiced their concerns to HHCN.
Take Jorge Preciado — who operates a Comfort Keepers franchise location in Woodland, California — for example. He sees the rule change as another bureaucratic hurdle in operating a home care business.
Preciado previously told HHCN he worries the registry isn’t doing what it’s meant to, as only industry insiders know about it, he said.
“Since [few consumers are] educated on it, if I’m going to hire a private caregiver, eight times out of 10, I don’t even know to check the registry,” Preciado told HHCN.
Meanwhile, Dean Chalios, president of the CAHSAH, voiced concerns regarding privacy and legality of the new policy.
“We were fine with the registry being created [in 2016] so consumers can check to see if caregivers are registered, but we object to that information going to labor unions for organizational reasons,” Dean Chalios, president of the CAHSAH, previously told HHCN.
Chalios is confident a federal judge will see it that way, too, he told HHCN after the suit was filed.
“It’s obvious to us that [the policy] is a clearly unconstitutional overreach by the state in this area, and we’re confident that the federal court will therefore rule in our favor on the suit,” Chalios said.