Private Duty Conference Highlights: Meeting Operational and Compliance Challenges, Part II – A Session Detail
February 22, 2016 10:47 AM
The National Association for Home Care & Hospice (NAHC) held its 2016 Private Duty Home Care Conference in Charleston, South Carolina, on February 1-2, 2016. NAHC Report will be providing coverage of some of the highlights from the conference.
Angelo Spinola of Littler Mendelson P.C. in Atlanta, Georgia, gave a presentation at the Private Duty Home Care Conference that explored the ins and outs of private duty home care compliance. “The burden you have as an employer is significantly higher than in any other area of labor employment law,” he acknowledged.
“The lawsuits come, and agencies start becoming compliant,” Mr. Spinola said. “We need to break this cycle and start developing compliance programs now.”
One of the key points Mr. Spinola stressed is how agencies define “work” and how hours are coded. “You have to have a compensation agreement with your employees that outlines the different payment structures for different types of work. It has to be clear in your policy.” Mr. Spinola discussed the regular rate, how to calculate it, when it applies, and how you use it to determine overtime payments. “You and your agency have to be responsible for keeping track of wages and hours. Let’s take a look at where the holes might be in your compliance program,” he suggested. One of those holes could be the rounding up or down of minutes worked. “The problem with rounding is that you analyze the impact, not the rule,” he explained, “and the impact almost always favors the employee, which means the employee will deserve more money.” Better to be neutral, Mr. Spinola urged. “The way you deal with rounding is pay to the minute – don’t round.”
On the topic of time on the road, Mr. Spinola reiterated, “You cannot substitute mileage for travel,” and encouraged owners to review their particular state laws. “How would you recommend using electronic verification to track employee mileage?” someone asked. “Have the paper backup certified by the employee. Or utilize some other system and have an employee sign off on it at the end of the week,” Mr. Spinola counseled. At the very least, he suggested, it’s important to have something on a pay stub that says the caregiver is responsible for reporting discrepancies in a certain period of time.
Mr. Spinola also spoke with regards to meal periods and sleep time for live-in situations. “Federal law does not require you to give employees a meal period. However, many states do.” Mr. Spinola encouraged agency owners to operate accordingly with their states. “How can you keep track of employees taking their meal periods?” It’s critical that agencies be able to prove how employees spent their time.
Beyond documenting and recordkeeping, Mr. Spinola advocated for arbitration agreements with staff and clients, as well as an internal process ahead of the arbitration. “Arbitration programs can make it so that you’re protected from class actions… A lawsuit will not be filed against you if your employees believe they have an internal mechanism that gives them a voice.”
If you missed this session, would like access to the original presentation slides, or more information, please contact Katharine Howard at NAHC: firstname.lastname@example.org.