U.S. Department of Labor (DOL) investigations into home-based care companies have skyrocketed. With this in mind, agencies need to be aware of the common issues in order to stay a step ahead.
One of the reasons the DOL has its eyes on the home-based care space is because of a high volume of back wage findings.
Specifically, from 2020 to 2022, the DOL’s wage and hour division identified violations in almost 89% of over 1,200 home care and nursing care investigations.
Though the DOL has its eyes on providers operating across the U.S, agencies in southern states have become a key area of focus, Angelo Spinola, the home health, home care and hospice chair at the law firm Polsinelli, said last week during a presentation at the Home Care Association of America (HCAOA) national conference.
“There’s less of a union presence in the south,” he said. “There’s lower wages, and there’s generally less state law when you look at the Southeast compared to the Northeast, or other parts of the country.”
Sometimes DOL investigations are targeted, but oftentimes they take place because of employee complaints. This opens the door to a deeper investigation.
“An employee has a complaint about one thing, and you would think that the audit would be about that one thing, and it’s not,” Spinola said. “That’s the most important thing to understand. A DOL investigation is going to look at everything. It’s almost like a mini-audit or mini-due diligence process just around your wage hour and labor issues.”
For agencies looking to avoid violations, exempt employee classification is an area worth paying close attention to, according to Spinola.
“Remember that to be exempt from overtime, it’s the employer’s burden to show that a worker is actually exempt,” he said. “There are two elements to an exemption. One is how you pay somebody, and the other is what they do. A lot of us focus on how we pay somebody, and say, ‘We’re paying them a salary, so they’re exempt from overtime.’ But if they’re not performing exempt duties, they’re not going to be exempt, no matter how high their salaries are.”
Agencies should also stay on top of independent contractor classification.
“If you have contractors within the same organization that do the same work as people that you call W-2 employees — you might have a problem,” Spinola said.
When an agency is the subject of a DOL audit, there are a number of things that providers should know going in.
Generally, the DOL doesn’t provide much advance notice of an audit.
“There will be an auditor, or an investigator, and they will either call or show up at your office, and they will often want to conduct interviews at that moment,” Spinola said. “Make sure whoever it is that answers your phone or your doors understands how to communicate to a DOL investigator.”
Indeed, this person should communicate that the audit can not be conducted at the moment, and that they need to schedule a time outside of the present day’s business hours.
“Do not allow the investigator to come in and start interviewing people, that is a no no,” he said. “Do not provide anything, whether it’s information, or documents to the investigator at that moment, that is a no no. You want a trained professional to be the one that’s working with that DOL investigator.”
It’s important for agencies to retain an attorney, and gather their records. That said, agencies should avoid providing records that the auditor didn’t request.
“The more information they have, if they’re looking at everything, the more they’re going to find things that aren’t the actual scope of the investigation,” Spinola said.
Ultimately, agencies should perform an analysis of their potential liabilities in order to prepare for the audit.
“We want to look and see what the DOL will potentially find here, and what can we fix,” Spinola said.