‘Gotcha Cases,’ Unionization Threats and Caregiver-Rights Laws: In-Home Care Legal Trends for 2020

In 2019, home care providers in California went to legal battle against legislation triggering the public disclosure of caregivers’ contact information.

Home care providers in Connecticut, New York and Chicago, meanwhile, fought heated contests against predictive-scheduling regulations.

These were just some of the legal trends that shaped the in-home care space last year. In 2020, providers should expect more of the same, plus several new legal challenges.

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Below are some of the biggest trends coming down the pike in 2020, according to Angelo Spinola, an attorney and shareholder at San Francisco-based Littler Mendelson. Littler Mendelson is the largest employment and labor law practice in the world, with more than 1,500 attorneys and 80 offices across the globe.

Threat of unionization

Organizations like the Service Employees International Union (SEIU) have been trying to figure out a way to unionize the in-home care industry’s workforce for years. The problem is that workers are often spread across a given market and that they don’t report to a common place, which makes it hard to organize.

Now legislative efforts have been made to reduce the obstacles that make it tough on hopeful unionizers. Those efforts most notably include California’s Assembly Bill No. 2455.

“This law requires, for any new registration or renewal of registration of a home care aide occurring on and after July 1, 2019, the California Department of Social Services to provide, upon request, a labor organization an electronic copy of a registered home care aide’s name, telephone number and cellular telephone number, as specified,” the law states. 

That would drastically change the access that unions have to home care workers. 

“These types of public registries allow for caregivers contact information to be published for the unions to utilize for organizing purposes,” Spinola told Home Health Care News. “Littler’s Work Policy Institute filed a lawsuit currently pending in California challenging the [Assembly Bill No. 2455] on behalf of the Home Care Association of America and the California Association for Health Services at Home that I think will go a long way to determine whether these kinds of public registries will be permitted.”

There was a prior version of the bill that wouldn’t have given the caregivers the option to opt out of the public registry if they wished. That bill was vetoed due to privacy concerns.

The bill was amended to include an opt-out clause for caregivers. Assembly Bill No. 2455 is active, but currently being challenged. The bill is notable for in-home care providers everywhere because it could set off a slew of states following California’s lead.

Similar efforts have taken place in Massachusetts, Colorado and Connecticut. In Connecticut, a bill similar to the first addition of California’s registry law was proposed and associations and coalitions fought hard against it on behalf of the employers. An updated bill similar to California’s Assembly Bill No. 2455 may be next in line.

Currently, 15 states have a democratic “trifecta” — when a political party holds the governorship, a majority in the state senate and a majority in the state house — which is a potential indicator that more of these registry rollouts and other types of employer regulation could pop up. 

Heightened state law activity

On a similar note, state-level challenges regulating the home care employer may be on the rise in 2020.

“Predictive scheduling — that’s an example. [So are] paid sick leave requirements and higher minimum wages,” Spinola said. “There’s just a tremendous amount of regulation and legislation that’s being passed — elimination of non-solicit agreements, [too] … those sorts of things are what many people see as anti-employer.” 

The non-solicit and direct hire clauses in caregiver contracts can be crucial for in-home care providers.

“The risk to the provider is that a client says, ‘I no longer need your services.’ The caregiver resigns, then later [the company] finds out the client and caregiver are working together via a side deal that cuts out the agency,” Spinola told HHCN in December. “If there was an agency fee of $6 an hour, the client may have said to the caregiver, ‘I’ll pay you an additional $3 an hour and keep the other $3, and we won’t use the agency for anything.’”

These states are also adopting what they call “domestic workers’ bill of rights”: Oregon, California, Connecticut, Illinois, New York, Massachusetts, Hawaii and Nevada. In July 2019, the city of Seattle passed one of its own. 

Generally, these bills mandate things like increased minimum wage, overtime pay, paid sick days, wage rate notices and employment agreements, and a potential paid rest day after six consecutive days of working. 

Federal workers’ rights bill looming

A federal version of those domestic worker bills has also been developed.

“The federal version is pending now in Congress,” Spinola said. “In the current composition of Congress, it shouldn’t go anywhere … but after the elections, it’s anybody’s guess what that composition will look like.”

There will be plenty of resistance if things do progress. The National Association of Home Care & Hospice (NAHC) is preparing to mobilize a coordinated, prearranged response to the federal bill if it were to pick up more steam than it has now.

The bill would give significantly more workplace rights to caregivers. The federal version of the bill includes training requirements and a predictive scheduling aspect along with several other requirements. 

Predictive scheduling would be tough for home care providers, given the volatility of each patient situation. It essentially mandates giving out schedules to caregivers beforehand and requires payment of penalties for any modification to that schedule.

The federal version is currently stacked with rights, and some of those may be stripped as the bill attempts to make its way through congress. It would be tough for a large amount of providers to comply with regulations if it were passed.

“The reason why agencies care about this is because it adds burden and additional requirements,” Spinola said. “In many cases, agencies don’t know that these laws have been passed. So what happens, for example, if the law requires the employer to provide a notice, training, or other benefits to the caregiver and the agency is unaware of it, then the agency is now liable for violations from a law it didn’t even know about. That’s easy pickings.”

“That’s one of the trends we’re seeing more and more of, these strict liability lawsuits,” he added.

At that point, it’s a very easy class-action case to bring against a provider. The provider, unaware of a regulation or requirement, may not be meeting the requirement and unintentionally exposing itself to significant risk of a class action lawsuit. Those are the type of gotcha-type cases could increase in 2020, Spinola said.

Another possible big-picture trend: claims pivoting to become more sophisticated and nuanced. Home care attorneys have largely been successful in countering certain types of claims — for example, those related to travel compensation or overtime. As a result, individuals filing suit have begun to get highly strategic.

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