If you’re a registry, a visit from the DOL might be on your mind. In this article, we’ll break down what the DOL might be looking for, how long an investigation can take, and what you can do today to set your registry up for success.
The DOL is going full steam ahead in pursuing home and community-based services for misclassifications, violations, and other actions to keep organizations accountable to workers (and the people those workers serve).
Let’s dive into what they’re looking for in particular and how you can move forward with your team.
What does the DOL look for?
There are a number of causes that could trigger a visit from the DOL. It’s particularly common for low-wage industries and businesses that employ historically marginalized and exploited groups. Care work is no exception.
Their goal is usually to gather information related to the Fair Labor Standards Act (FLSA), which could include:
- Wage
- Hour
- Employment-related
Basically, that covers any information that could potentially classify someone as an employee/worker—or, in your case, not as an employee.
What can you do ahead of time? There usually isn’t much notice given to you ahead of a DOL visit, but you do have the right to request more time to gather records. You can also ask for more details into the nature of the investigation so that you can prepare your team and to gather the information/records you need.
How long does a Department of Labor investigation take?
The length of an investigation can vary based on the nature of the industry or business, the type of investigation, how many employees are interviewed, and if there is any activity that indicates further scrutiny.
One of our customers, Julie Black, Owner of Nurture Care has gone through this first-hand and shared her team’s experience.
“We recently had an audit, a surprise audit, at that. It was very unnerving, but with not paying caregivers through Escrow and no money moving back and forth, our audit took less than two weeks,” Julie shared. Not to mention the fact that one of her colleagues had a six-month-long audit.
A few helpful tips:
- Only share data, reports, and documents that are required or specifically asked for.
- Some of the items that they may ask for include: worker payment records, time sheets or time-keeping records, or other supporting documentation that may indicate potential violations. As an example, this could mean payment records for training or equipment.
- Make sure to work with a reputable industry attorney like Polsinelli who can provide counsel and advice to keep you and your team on track and accountable.
Best practices to set your caregiver registry up for success
The main goal in keeping up with regulations for your registry is to maintain and uphold your business model. Since you find work for independent contractor caregivers, the goal is to protect and defend against anything that would make them an employee.
Different states have different considerations for independent contractor standards. Massachusetts, as an example, has four different tests for independent contractors. You could have employees in one category and three independent contractors in the other or vice versa.
Payment processing procedures
One of the biggest pieces of Nurture Care’s operations that set them apart in their DOL audit and investigation was the “partitioned payment systems in place [that] saved us a lot of time. It’s very efficient, and we don’t spend a lot of time in the system because it’s running correctly,” shared Julie.
You can use third-party payment processing systems to avoid cutting checks in your company’s name, which depending on your state, may lead to misclassification issues.
Review the FAB
The Field Assistance Bulletin outlines the criteria necessary for caregiver registries to maintain their status as registries that match work for 1099 workers.
The FAB mainly looks at the economic reality test for independent workers and needs to be taken in context with the new Independent Contractor Rule.
If you’re not familiar with the FAB, check out our recent webinar recording in partnership with the Private Care Association: Home Care Registries: Navigating the FAB-2018-4.
You’re likely already familiar with the fact that most systems and platforms are not built for registries. Ally, on the other hand, was designed with you in mind.
From partitioning payment to providing caregivers and clients directly with 2-way communication systems, your team can stay out of the care processes. This gives you more time to maintain your business model and develop new business.
Don’t sweat a visit from the Department of Labor.
We can’t stop the DOL from coming to your door, but if you find yourself expecting a visit, you have a go-to resource.
By learning from Julie’s experience with Nurture Care’s audit, you can prepare ahead of time and make sure that your registry is up to par.
If your team doesn’t feel equipped with the technology you’re currently using, switch to Ally today. Schedule some time for a demo here.
