I am a big believer in advice from the U.S. Department of Labor. I have applauded the re-introduction of opinion letters and I welcome any published guidance (on any subject) so I can better advise/counsel my clients on compliance issues. The home health care industry has been aflutter recently with all kinds of litigation and DOL issuances. A thorny issue is when/if someone working in this field is an independent contractor. Well, the agency has recently published guidance on this issue.

The guidance addresses the home-care registry industry. The registries funnel home care workers to elderly and infirm clients. Almost universally, these workers are treated as independent contractors. Although the field bulletin addresses a small number of workers in a discrete industry, the guidance suggests the manner in which the Trump DOL will view other flash point independent contractor sectors, like Uber (where there has also been extensive litigation). .

The guidance lists a number of factors that will be considered when making the determination of employee-independent contractor status. The guidance smacks of earlier guidance and numerous cases on this subject. If the registry gets into the details of the manner of care provided, that would be evidencing too much control. In this regard, giving a modicum of training to such workers might pass muster, as the Company can argue that such generic training is for customer relations purposes or for safety reasons.

There also a number of industry-specific factors that will be considered. The bottom line is that the analysis will be the usual totality of the circumstances test.

The Takeaway

So it seems that the watchword will (continue to) be “totality of the circumstances.” The more things change, the more they stay the same. Except—it is the application of the factors and how they play out in a given case.

That’s where the rub is…