Department of Labor Lawsuits – Home Health

The DOL has filed new lawsuits against 5 different home health and home care providers across the county.

In the suits filed, the DOL is going after providers for failing to adhere to the 2015 enacted rule requiring home care workers such as homemakers, companions, and aides to be paid overtime for any hours worked over 40 in one week.

Since enacted, several groups including the Home Care Association of America, the National Association for Home Care and Hospice, and the International Franchise Association have actively lobbied the DOL to reverse their decision.  Additionally, several Senators in heavy senior populated areas such as Florida have expressed constitutes’ concerns about the law.  It seems as though this has all fallen on deaf ears.

While some home care staff were excited about possible overtime, the exact opposite happened for almost all staff.  Rather than earning more, most aides, companions, and homemakers have seen a reduction in wages because they are no longer allowed to work over 40 hours in one week.

When the rule was finalized, many workers from all over the country were upset as it was a direct hit to their finances. Most of the workers enjoyed working over 40 hours per week and getting paid without overtime.  In some cases, the aides were making just as much, if not more than professional staff and were happy about it. However, this new rule changed that, forcing staff to work at more than one agency to make ends meet which has only increased the demand for staff in a shrinking candidate pool.

As projections have shown, the need for home care services is expected to grow over the next 10 – 20 years. However, as all agencies know, the ability to find qualified staff continues to become harder and harder. In some states, the ability to get around the law by using a registry and contracted staff has solved the issue. But that model is also open to interpretation by the IRS as it decides if the contractor is really an employee.  Audit after audit has shown that healthcare providers typically lose if they get audited by the IRS for hiring individuals as contract staff. The result is usually heavy fines, penalties, and back taxes that can put a significant damper on the agency’s ability to grow.

While there could be some possible progress on this rule, we shouldn’t wait for any change. Legislation has been introduced without any traction.  A court challenge overturned. Going forward, we can expect the rule to remain unless the Trump Administration, who has been very favorable to businesses and regulation cutting, steps in.

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