DOL issues guidance on nurses and caregivers

The U.S. Department of Labor Wage and Hour Division (WHD) has issued guidance on nurses and caregivers. Specifically, the Field Assistance Bulletin (FAB) provides guidance to Wage and Hour Division field staff to help them determine whether home care, nurse, or caregiver registries (registries) are employers under the Fair Labor Standards Act (FLSA). A registry is an entity that typically matches people who need caregiving services with caregivers who provide the services, usually nurses, home health aides, personal care attendants, or home care workers with other titles (collectively, caregivers).

Consistent with WHD’s longstanding position, a registry that simply facilitates matches between clients and caregivers—even if the registry also provides certain other services, such as payroll services—is not an employer under the FLSA. A registry that controls the terms and conditions of the caregiver’s employment activities may be an employer of the caregiver and therefore subject to the requirements of the FLSA. To ensure consistent enforcement, the FAB provides specific examples of common registry business practices, which may, when the totality of factors is analyzed, establish the existence of an employment relationship under the FLSA. (U.S. Department of Labor Wage and Hour Division, Field Assistance Bulletin, 2018-4, July 13, 2018.)

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