Those guys have seen it all and told the tale at the Private Duty Conference last month.
Homecare executives are aware their industry is the #1 target for FLSA claims. Two hundred and fifty gathered expectantly at the 19th Private Duty conference with questions to stump the attorneys. Angelo Spinola of Littler Mendleson and Bob King of Legally Nanny were on stage for legal wisdom and stories from the courtrooms.
These are the top points brought up during the lively Q&A session:
Lawsuits following the end of companion exemption – In the case of challenges on overtime pay for caregivers, DOL investigators sometimes attempt a look-back period starting on January 1, 2015. This is the date the exemption should have kicked in.
But the overtime exemption only became effective in November 2015. This should be the maximum look back period. Attorneys might have to argue on behalf of their homecare clients with DOL.
Mandatory arbitration – Many agencies have introduced a mandatory arbitration clause with caregivers to minimize the risk of collective actions. However, mandatory arbitration is not without risks of its own.
It has to be written in accordance with guidelines issued by the EEOC, and must include an opt-out provision. And don’t assume arbitration is necessarily less expensive than litigation.
Bob King encouraged employers to think twice about mandatory arbitration. They should only implement it if they fear large scale or repeated collective actions. “Litigation is not always the kiss of death of an agency especially when they are few and far between,” he added.
Wages – Agencies should compensate caregivers traveling between clients as part of hours worked. They probably should also reimburse associated mileage.
In the case of split shifts, mileage can be considered as commuting, especially if the caregiver doesn’t travel to another client between the morning and evening split shifts. However, it might be wise to consider paying a split shift premium which is a requirement in the state of California.
Classification of caregivers – However tempting it may be to classify caregivers as exempt from overtime, attorneys made the point strongly that caregivers are non-exempt employees. The exempt classification usually applies to professional, certain administrative and executive employees. Caregivers do not meet the exemption duties test and probably not the salary test either.
On-Call – There is no need to pay a premium to exempt employees working on-call. Exempts are paid a salary regardless of quantity of work produced or hours worked. Whenever possible, consider staffing on-call duties with exempt employees.
However, non-exempt employees working on-call hours have to be paid for all hours worked. Paying an on-call premium is not prudent as it doesn’t take into account hours worked. Non-exempt employees must track the time spent working on-call to ensure the wages paid meet the minimum salary requirement and overtime pay.
Many agencies have reduced the amount of the on-call premium or abandoned the practice altogether, which was the recommended approach by attorneys on stage.