Thursday, March 01, 2012

Clients should be careful with caregiver personnel issues, even if they come from agencies

To open the new month, I’ll note that I’ve had conversations recently that indicate that home health agencies, in general, may be “hiring” aides as independent contractors when these persons should be treated as employees, according to the law or Department of Labor regulations.

Here’s a typical reference.

Another one gives advice to people hiring aides, here

When people are employees and are not live-ins, they typically are entitled to overtime. 
An agency is typically responsible for checking green card status and for handling all IRS and FICA withholdings.  But there has been some under-the-table comment that the client might be liable if he or she knows or reasonably suspects that this is not being done, or that the agency isn’t paying overtime when it should. 

Agencies don’t always charge clients for overtime (when one caregiver is present for more than 40 hours but not a live-in).  Some charge more nights and holidays or weekends.  But they might be responsible for paying their own non live-in employees overtime, and it’s conceivable that could fall back to the client.
There was a detailed discussion of previous court rulings on the issue March 2, 2011. 

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