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After withdrawing an Obama-era “Administrator’s Interpretation” of what constitutes an independent contractor in June, the Department of Labor (DOL) a month later has begun the process of defining independent contractor status with a Field Assistance Bulletin (FAB) on nurse and caregiver registries.


Labor Secretary Alexander Acosta

The published bulletin, titled “Determining Whether Nurse or Caregiver Registries Are Employers of the Caregiver,” clarifies:

This Field Assistance Bulletin (FAB) provides guidance to Wage and Hour Division (WHD) 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).

Specifically, as the quotation indicates, the bulletin advises agents in the field in determining whether registries that help nurses and caregivers find employment are employers and consequently if those they place are their employees. In doing so, the tract sheds light on how the DOL is redefining independent contractor status.

To start, if the registry conducts background investigations, offers training and connects a caregiver with a client, those acts alone do not establish an employer-employee relationship.

On the other hand, if the registry chooses the client on behalf of the caregiver, conducts visitations to do evaluations of the caregiver, defines duties for the caregiver, and/or also establishes rate of pay and time-on/time-off scheduling, then the registry is indeed an employer.

The bullet, however, says that no one factor is “dispositive” and leaves the reader/field agent with this conclusion:

WHD will consider the totality of the circumstances to evaluate whether an employment relationship exists between a registry and a caregiver. Because the analysis does not depend on any single factor, and because caregiver registries operate in a variety of ways, WHD will evaluate all factors (including the practices discussed above) to reach appropriate conclusions in each case.