People Care, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1993

311 N.L.R.B. 1075 (N.L.R.B. 1993)

1075
311 NLRB No. 108
PEOPLE CARE, INC.
1 Review was requested of the Regional Director’s findings that:
(1) home health care workers provided by the Employer to certified
home health care agencies are employees of the Employer, rather
than independent contractors; (2) quality assurance technicians
should be included in the unit found appropriate; and (3) the appro-
priate eligibility formula to be applied is that set forth in Davison-
Paxon Co., 185 NLRB 21 (1970), rather than the more restrictive
formula set forth in Marquette General Hospital, 218 NLRB 713
(1975). Only the portions of the Regional Director’s decision ad-
dressing the first issue are attached.
People Care, Inc. and Local 1199, Drug, Hospital
and Health Care Employees Union, Petitioner.
Case 13–RC–18592 (formerly 2–RC–21209)
June 9, 1993
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
the Employer’s request for review of the Regional Di-
rector’s Decision and Direction of Election (pertinent
portions of which are attached). The request for review
is granted solely with respect to the Regional Direc-
tor’s finding that the petitioned-for home health care
workers (providers) are employees of the Employer.
On review, having carefully considered the entire
record, including the Employer’s request for review
and the Petitioner’s opposition brief, we affirm the Re-
gional Director’s decision. In all other respects, the re-
quest for review is denied.1
APPENDIX
The Petitioner, Intervenor, and Incumbent Unions seek to
represent a unit consisting of all full-time and regular part-
time home health care workers employed by the Employer,
including home health aides, junior home health aides, nurses
aides, homemakers, personal care workers and housekeepers;
but excluding all other employees, including registered
nurses, office clerical and professional employees, guards
and supervisors as defined in the National Labor Relations
Act.
The parties have raised three issues. First, the Employer
contends that certified home health care aides, personal care
aides, junior aides and housekeepers are independent contrac-
tors and thus may not be included in any bargaining unit.
(Hereafter, certified home health aides and personal care
aides are referred to sometimes as ‘‘aides.’’) All three
Unions maintain that these workers are employees. Second,
the Employer contends that should I find the junior aides to
be statutory employees, they nonetheless should be excluded
from the unit as temporary or casual employees. All three
Unions maintain that junior aides are regular employees who
properly belong in the unit. Third, the Employer and Unions
are at odds over the formula by which to determine the eligi-
bility of employees to vote in any election directed here.
The Employer is a home care agency, certified under the
laws of the State of New York. It places individuals in the
homes of the elderly or infirm in order to assist with their
various needs. Thus, certified home health aides and junior
aides perform light housekeeping tasks, meal preparation,
shopping, and laundering, as well as routine health are proce-
dures such as dressing wounds, assistance with medications
and personal hygiene, and catheter, ostomy, and enema care.
Certified home health aides must be licensed by the State of
New York’s Department of Health. Junior aides undergo
training in order to be certified as home health aides. Per-
sonal care aides are certified by New York’s Department of
Social Services. They perform the same personal hygiene,
feeding, dressing, and housekeeping tasks as certified home
health aides. However, they do not carry out some of the
health care tasks, such as enemas and colostomy irrigation,
which certified home health aides and junior aides perform.
The Employer also retains the services of fewer than five
housekeepers. They do not have to be certified or licensed
and primarily perform light house cleaning work.
The vast majority of the Employee’s business comes from
contracts with state-certified home health agencies known as
vendors. Vendors, such as those associated with hospitals,
contact the Employer to request that it place an aide in a pa-
tient’s home or a specific number of hours over a certain pe-
riod of time. The Employer has no control over the hours,
duration, or location of a particular assignment. The vendor
agency determines the specific plan of care under which the
aide will work. The Employer has no authority to modify
this plan of care without the vendor’s prior approval. The
vendor pays the Employer either an hourly rate or, in the
event of sleep-in care, a flat daily rate. In addition to vendor
contracts, the Employer also provides aides to private clients
with which it has individual contracts. At the time of the
hearing, the Employer had only two or three such private pa-
tients.
The Employer maintains a list of individuals who either
have worked with the Employer in the past or have indicated
a willingness to do so. In order to fill a vendor’s request,
employees referred to as coordinators phone individuals off
this list to offer them the position. Should the individual de-
cline the work, the coordinator calls another person on the
list until the position is filled. Approximately 1200 individ-
uals have worked for the Employer during the period January
1 through September 30, 1992. On average, approximately
600–700 individuals work for the Employer on any given
week.
An individual must apply for a position with the Employer
in order to be placed in the Employer’s labor pool. The Em-
ployer requires an applicant to complete a written applica-
tion. Individuals in the Employer’s human resources depart-
ment then interview the applicant, looking for such things as
reliability, preferred work locations, and language facility. If
the applicant for an aide position is certified by the appro-
priate governing bodies, a requirement under state law, the
Employer confirms the validity of the certificate. It also sub-
jects the applicant to a physical examination and checks his
or her references, as required by state law. If the individual
meets the Employer’s needs, he or she will fill out a Federal
W–4 income tax withholding form. In addition, the Employer
provides the individual with copies of its personnel manual
as well as other work rules. Vendors play no role during this
hiring process.
The Employer offers a free, state-certified training pro-
gram for successful applicants for a home health aide posi-
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion who do not yet hold a certificate. The trainee first un-
dergoes 2 weeks of classroom instruction run by the Employ-
er’s employees. The training program tracks state guidelines;
the Employer does not supplement required course work to
any significant degree. At the end of the 2-week period, the
trainees are tested on their classroom work. Slightly more
than 50% percent of the trainees pass on to the second level
of instruction. At this stage, trainees (now referred to as jun-
ior aides) undergo a series of 10 field evaluations within 60
days, similarly mandated by state law. Thus, junior aides ac-
company the Employer’s registered nurses on home visits.
The aides perform the duties expected of a certified home
health aide, and are evaluated by the registered nurses. Ap-
proximately 75 percent of the junior aides satisfy this final
hurdle, receive state home health care certificates, and are
placed on the Employer’s on-call list. The Employer pays
junior aides for time spent on the evaluative visits; trainees
undergoing class work are not paid.
The Federal and state governments also require that cer-
tified aides receive continuing education, referred to as ‘‘in-
service’’ training programs. The Employer runs some of
these sessions; some are also presented by a vendor agency.
The Employer has no educational requirements for house-
keepers.
The Employer has a limited onsite supervisory role once
an aide receives an assignment. As set forth above, vendors
compose a patient’s plan of care to be implemented by an
aide. Visiting nurses employed by the vendors come into the
patient’s home once a week or so to provide further care and
to investigate the aide’s compliance with the plan. Vendors
prohibit the Employer from entering a patient’s home to su-
pervise an aide. Rather, visiting nurses will direct an aide’s
performance to whatever event necessary in order to fulfill
the plan of care. Pursuant to state law, however, the Em-
ployer must include in each contract with a vendor a clause
guaranteeing that it is the Employer’s responsibility to,
‘‘insur[e] adherence by agency staff to the agency plan of
care established for patients.’’ 10 NYCRR Sec. 766.2(d). The
Employer indemnifies vendors from any liability resulting
from injury or damage as a result of an aide’s negligent or
willful acts while on duty.
The Employer, however, checks the aide’s attendance in
the home each day. The Employer also investigates if an aide
calls in sick. Should a vendor complain to the Employer
about an aide’s performance, the Employer will issue the
aide a correction letter describing the deficiencies and noti-
fying the aide of the appropriate behavior. The Employer
will remove a particular aide from a case should the vendor
so request. Once assigned, the Employer cannot replace an
aide without the vendor’s approval. Following removal, the
Employer may conduct an investigation into the performance
problem. Based on the results, the Employer may utilize that
aide on other cases and/or for other vendors.
The Employer also issues warnings to employees for rules
infractions, such as absenteeism and repeated tardiness. As
per the Employer’s personnel manual, warnings will affect,
‘‘raises, vacations, and [aides’] ability to obtain letters of ref-
erences.’’ Depending on the nature and duration of the in-
fraction, the Employer may remove that aide from its on-call
list altogether. For instance, the Employer’s orientation and
personnel manuals provide that such things as patient aban-
donment and verbal abuse are cause for ‘‘termination.’’ A
‘‘terminated’’ aide has the right to meet with an Employer
representative to defend his or her conduct. That representa-
tive, called a coordinator, may rescind the earlier decision
and reinstate the aide on the list.
Aides can call both visiting nurses as well as the Employ-
er’s own personnel with on-the-job questions or problems.
The Employer will refer questions about the plan of care to
the visiting nurse. In some circumstances, the Employer re-
sponds to aides’ work-related inquiries, particularly where
they involve emergency situations.
Under state law, the Employer must produce an annual
evaluation of each aide. In practice, the Employer or the aide
provides an evaluation form to a visiting nurse who works
with an aide on a case. The visiting nurse fills out the form
and returns it to the Employer. The Employer conducts its
own evaluations of aides who are assigned to private pa-
tients.
State law also requires the Employer to develop and main-
tain specific policies and procedures. For instance, regula-
tions require the Employer to implement, ‘‘written personnel
policies and procedures.’’ 10 NYCRR Sec. 766.3(a). Other
state-mandated policies include documentation of the health
of aides and housekeepers; time and payroll records; orienta-
tion programs; written job descriptions; and instruction con-
cerning HIV transmission and confidentiality.
The Employer pays aides an hourly wage, which the Em-
ployer sets. The Employer pays a premium to aides working
either on a holiday or on a case involving a patient with
AIDS. At the start of 1992, the Employer initiated a program
of bonuses to those aides who establish satisfactory attend-
ance records. The Employer has since abolished this pro-
gram. Aides are not guaranteed a minimum number of hours.
The Employer does not provide aides with any benefits, with
the exception of vacation leave for those aides who work at
least 42 weeks per year. Aides wear a white uniform with
a badge identifying the Employer, both of which are required
by the State. Aides pay for their own uniform. The Employer
also maintains rules regarding aides’ grooming and cleanli-
ness. Aides are not required to assume any costs of patient
care; travel costs to and from the patient’s home constitutes
their only out-of-pocket expense. The Employer deducts state
and Federal withholding taxes from aides’ wages. The Em-
ployer also contributes to unemployment and workman’s
compensation funds on behalf of the aides.
In determining whether individuals are employees or indi-
vidual contractors, the Board applies common law tests of
agency status. NLRB v. United Insurance Co., 390 U.S. 259
(1968). Among the principles the Board utilizes is the ‘‘right
of control’’ test, as follows:
Where the one for whom the services are performed re-
tains the right to control the manner and means by
which the result is to be accomplished, the relationship
is one of employment; while, on the other hand, where
control is reserved only as to the result sought, the rela-
tionship is that of an independent contractor. The reso-
lution of this question depends on the facts of each
case, and no one factor is determinative.
Cardinal McCloskey Services, 298 NLRB 434 (1990), citing
News Syndicate Co., 164 LRB 422, 423–424 (1967). The
Board also takes note of the extent to which the individuals
1077PEOPLE CARE, INC.
1 Since no party contends here that the Employer is a joint em-
ployer with vendors, I will not pass on this issue. However, even
assuming arguendo that such a relationship exists, the lack of par-
ticipation by the ‘‘joint employer/vendors’’ does not prejudice the
Employer’s positions or interests in any way. The record herein es-
tablishes appropriateness of a bargaining unit. The inclusion of a
joint employer in these proceedings would not otherwise alter the
Employer’s duties and obligations, if any; it would simply have al-
lowed a union to bargain with a vendor as well. See, e.g., NLRB
v. Western Temporary Services, 821 F.2d 1258 (7th Cir. 1987).
have proprietary interest as well as a financial risk in their
work. Standard Oil Co., 230 NLRB 967 (1977). The Board
has recently concluded that
[e]nforcement of laws or government regulations, how-
ever, is not considered control over the ‘‘manner and
means’’ by which results are accomplished, because
such enforcement is, in reality, supervision by the gov-
ernment, not by the ‘‘employer.’’
Cardinal McCloskey, supra at 435, citing Air Transit, Inc.,
271 NLRB 1108, 1110–1111 (1984).
The record establishes that the Employer retains significant
control over the aides’ terms and conditions of employment.
The Employer unilaterally sets the aides’ wages and adopts
and rescinds benefits, such as the bonus program, as it sees
fit. The Employer deducts Federal and state withholding
taxes from the aides’ paychecks. The Employer also contrib-
utes on behalf of aides to workmen’s and unemployment
compensation funds.
Aides are also expected to adhere to a variety of work
rules set forth in the Employer’s personnel manuals such as
call-in requirements and a grooming code. The Employer
issues warning letters to aides for such work rule violations
as absenteeism and tardiness. The warnings may affect the
aides’ wages as well as their continued employment. The
Employer will terminate an aide for a variety of more serious
infractions spelled out in the personnel manual. The Em-
ployer may conduct a posttermination investigation which
can lead to reinstatement. Terminated aides similarly have
the right to meet with the Employer to argue for their rein-
statement.
Although the State requires the Employer to maintain writ-
ten personnel policies, I do not find that by doing so the
State has divested the Employer of its supervisory authority.
State law does not require the Employer to adopt regulations,
such as a disciplinary procedure, which constitute hallmarks
of an employer/employee relationship. Rather, the State
leaves the Employer with the flexibility to structure its per-
sonnel policies according to its own needs and requirements.
Those policies which the State does specifically require are
either ministerial (e.g., the production of time and payroll
records) or within the States’ traditional role as monitor of
public health and safety (e.g., maintenance of employee
health records and implementation of HIV policies).
Aides exhibit few traits of an entrepreneur. Aides assume
no costs of patient care, never work in their own homes, are
indemnified from liability while at work, and are not re-
quired to purchase equipment other than a uniform. Their
out-of-pocket expenses—limited to travel expenses to and
from the patient’s home—is no different from other employ-
ees who similarly pay to travel to the workplace. Like other
classifications which the Board has found to be employees,
aides ‘‘bear slight resemblance to the independent business-
men whose earnings are controlled by self-determined poli-
cies, personal investment and expenditures, securing busi-
ness, and market conditions.’’ News-Journal Co., 227 NLRB
568, 570 (1976).
The record establishes that vendors, through the auspices
of the visiting nurse, directs aides in the performance of
those duties set forth in the plan of care. Vendors also com-
pose the aides’ annual state-mandated evaluations. The Em-
ployer nonetheless retains significant control over the aides’
conduct through its disciplinary procedure, personnel rules,
its ability to respond to aides on-the-job problems. The
record further establishes that the vendors control the type,
scope, and duration of the work the aides perform. It is not
unusual, however, for a customer to specify the product or
service which it purchases. Nonetheless, to the extent that the
Employer does share with vendors some measure of super-
visory authority over the aides, it should be stressed that
when addressing the issue of employee status no single fac-
tor is determinative. News Syndicate Co., supra. See gen-
erally South Carolina Education Assn., 240 NLRB 542
(1979) (individual found to be an employee despite ‘‘prac-
tically no supervision).1
The Employer contends that state regulation has effec-
tively usurped its authority to control the ‘‘manner and
means’’ by which aides perform their work. Thus, it main-
tains that it does not impose any significant requirements on
aides other than those required by law. In its brief the Em-
ployer cites cases in which the Board found the individuals
at issue to be independent contractors due in part to perva-
sive governmental regulation. While acknowledging that the
government regulations of the home health care industry in
New York are significant, I find the cases upon which the
Employer relies to be distinguishable.
The government in Cardinal McCloskey Services, 298
NLRB 434 (1990), set the day care providers’ hours of oper-
ation, determined their wages, reimbursed them for costs of
meals and equipment, provided them with insurance cov-
erage, and mandated that the employer provide them with a
number of paid holidays. In Air Transit, Inc., 271 NLRB
1108 (1984), the government set the fare schedules which ef-
fectively controlled driver earnings, and required that drivers
take out insurance and purchase two-way radios and meters
for their cabs. Here, the Employer, not the government, sets
the employees’ wages and determines their raises and bo-
nuses, if any. The government does not provide aides with
insurance or mandate that they take any out. Aides are not
obligated to purchase any equipment other than a uniform
and have no state-sponsored holidays.
Unlike home health aides, the individuals at issue in the
above-cited cases also assumed some of the risks of an entre-
preneur. For instance the day care providers in Cardinal
McCloskey worked out of their own homes, and assumed
such business-related costs as utilities fees as well as any ex-
penses arising from damage to their own property or the
elimination of hazardous conditions in their home The cab-
drivers in Air Transit received no wages or benefits from the
company and were responsible for the purchase, financing,
insurance, and maintenance of their own vehicles. The Em-
ployer’s aides, junior aides, and housekeepers assume none
of these risks and incur no costs other than the purchase of
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a uniform and the cost of traveling to and from the work-
place.
Unlike the Employer here, day care centers in Cardinal
McCloskey had no authority to discipline providers, did not
deduct withholding taxes from their pay, and did not con-
tribute to providers’ unemployment and workmen’s com-
pensation funds. In Air Transit, Inc., the company’s earnings
were determined solely by the number of cabdrivers it could
contract with by law, and not by driver earnings. Thus, as
the Board concluded, ‘‘the Company’s interest in the manner
and means of the drivers’ performance is virtually nil.’’ Id.
at 1111. These indicia, in toto, distinguish the above cases
from the instant matter.