Last Friday, the Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2018-4 to help guide the DOL Wage and Hour Division field staff as to the correct classification of home care, nurse, or caregiver registries under the Fair Labor Standards Act (“FLSA”). This is the most recent piece of guidance on a topic first addressed by the DOL in a 1975 Opinion Letter. The bulletin is noteworthy in two respects. First, it confirms that the DOL continues to view a registry that simply refers caregivers to clients but controls no terms or conditions of the caregiver’s employment activities as outside the purview of the FLSA. Second, and most helpfully, the bulletin provides specific examples of common registry business practices that may establish the existence of an employment relationship under the FLSA.
The following chart summarizes the DOL’s position on a number of common registry business practices, with the caveat that no one factor is dispositive to determining whether a registry is an employer of a caregiver under the FLSA.
|Indicative of Employment Relationship||Not Indicative of Employment Relationship|
|Interviewing the prospective caregiver or the caregiver’s references to evaluate subjective criteria of interest to the registry||Performing basic background checks of caregivers (e.g., collecting the caregiver’s criminal history, credit report, licensing, and other credentials)|
|Hiring and Firing||Controlling hiring and firing decisions by, e.g., interviewing or selecting the caregiver or firing the caregiver for failing to meet the standards of the registry or industry||Inability to hire or fire employees|
|Scheduling and assigning work to specific caregivers (i.e., a subset of qualified caregivers) based on the registry’s own discretion and judgment rather than the client’s||Providing client access to vetted caregivers who meet client’s stated criteria; requesting all qualified caregivers contact a particular client if they are interested in working for the client|
|Scope of Caregiver’s Work||Controlling the caregiver’s services/behavior, including but not limited to restricting a caregiver’s ability to work with other referral services or work directly with clients outside the registry||Seeking information concerning the type of care needed by the client for matching purposes|
|Caregiver’s Pay Rate||Receiving fees from a client on an on-going basis based on the numbers of hours that a caregiver works for the client or some other arrangement||Receiving a one-time referral fee|
|Fees for Caregiver Services||Directly setting the caregiver’s pay rate||Communicating general market/typical pay rates or relaying offers/counteroffers to the client|
|Caregiver Wages||Paying the caregiver directly||Performing payroll services, provided that the client provides funds directly or via an escrow account|
|Tracking of Caregiver Hours||Actively creating and verifying time records||Performing payroll services after client/caregiver submits time records|
|Investing in equipment or supplies for a caregiver or the caregiver’s training or licenses||Investing in office space, payroll software, timekeeping systems, and other products to operate a registry business; providing caregivers the option to purchase discounted equipment or supplies from either the registry or a third party|
|Receipt of EINs or 1099s||N/A||Requiring an Employment Identification Number or issuing a caregiver an IRS 1099 form|
The issuance of this field assistance bulletin indicates a commitment by the DOL to clarify the employment relationship between caregivers and home care, nurse, or caregiver registries, which is a positive development from the perspective of the registries. However, registries should promptly review their business practices, as the Wage and Hour Division, now armed with this guidance, may be more inclined to fight misclassification in this industry.