Home-based care agencies should keep a close eye on developments made by the Biden administration when it comes to antitrust laws and non-compete agreements, according to industry insiders.
Partners and shareholders with the Polsinelli law firm detailed the latest updates within the Department of Justice (DOJ) on a webinar Thursday. They also covered how new partnerships between divisions in the federal government should promote competitive labor markets, not only in health care, but in the country at large.
One of the main focuses from the current administration include “no poach” clauses in franchise agreements.
In fact, the Federal Trade Commission (FTC) recently issued a civil investigative demand (CID) with an undisclosed home care provider, which Polsinelli shareholder Will Vail said should be noted by the industry.
“It’s pretty clear that the FTC doesn’t really understand home care, but it does seem that they want to learn, so this is definitely an example of why the industry has to be really careful,” Vail said. “I’m not saying that this company has done anything wrong, but the government is looking more into figuring out, ‘What is the state of play in this industry and how may it be violative of the antitrust laws?’”
Vail also pointed to four owners and managers of home health care agencies in Maine being indicted on no-poach and wage-fixing charges as examples of an increased crackdown.
“The DOJ has the most antitrust grand jury investigations in over 30 years,” Vail said. “They’re hiring 120 new lawyers and 900 FBI agents to support this initiative. This is something you definitely want to be cognizant of when you are approached by a competitor or anyone else in your marketplace. Be very, very careful of any sorts of agreements in this space.”
Vail offered three suggestions to providers to avoid any antitrust violations: carefully examine franchise agreements to ensure “no-poach” clauses are removed, analyze antitrust issues early in M&A transactions and avoid discussions on agreements with competitive businesses about wage rates.
Polsinelli’s experts also gave guidance to providers on how to better retain staff, with a specific focus on avoiding labor groups unionizing.
Specifically, they said that the Biden administration wants to make it easier for home care employees to unionize.
“We don’t want this kind of third party interference between employers and employees, but there’s a tension that’s happening in this system,” Polsinelli’s Denise Delcore said. “Home care providers have had greater challenges than we’ve ever seen before. As employees are struggling to deal with those — particularly in the wake of COVID — there’s a renewed effort to organize this industry.”
Delcore argued that the collective bargaining “schemes” from unions don’t apply well in the home care industry in the same way they have historically in traditional workplaces.
“[Home care labor unions] don’t meaningfully engage the workers in the collective bargaining process, which jeopardizes further alienating workers at a time where worker retention is more critical than ever,” she said. “In fact, in some cases, we have workers in states where the dues are being skimmed off of Medicaid payments, learning that they have a labor union only when they’re looking and seeing that deduction.”
Many union organizers in the home care space are capitalizing on worker’s discontent coming out of the COVID-19 pandemic, Delcore said.
“Of course, in no event is any employer ever entitled to thwart or threaten an employee’s desire to learn about unions, to organize, to make concerted complaints as a group,” Delcore said. “However, there’s a distinction between that versus the sort of surreptitious effort to gain access to employees.”
Supporting employees, giving them a space to talk, providing them meaningful training and making workers feel important and valued are just some of the things that providers can do in order to avoid some of the issues that could lead to unionization, Delcore said.
“If you’re not on top of it and actively engaging with your workers and communicating with them, they won’t have the opportunity to hear the actual facts about what a union would mean for them,” she said.