I often get calls from home care workers about issues with their wages or pay checks. Frequently they tell me they are working for an agency as an “independent contractor”. Because of a law passed by the Georgia Legislature in 2015 this is an illegal practice. Home care workers employed by an agency are by definition “employees” under Georgia state law.
Home care workers are people who help elderly or disabled individuals with tasks like bathing, grooming, cleaning, shopping, preparing meals, basic exercise, assisting and reminding patients to take medications, as well as other basic daily living activities. Home care workers are not required to obtain, nor do they usually have, any professional license from the State.
Before 2015 Georgia law was silent on whether home care workers working for a home health care provider agency could be hired as an independent contractor.
But in May, 2015 the Georgia House passed HB 183, The Home Care Patient Protection Act. The Home Care Patient Protection Act changed OCGA 31-7-300 to make it so a “Private Home Care Provider” must either use employees or “independent contractors who are health care professionals licensed pursuant to Title 43.”
This means unless an employee has a license from the State which is listed in OCGA Title 43 they can not be employed by a home care agency as an independent contractor. Examples of health care workers licensed under Title 43 include chiropractors, dentists, nurses, occupational therapists, physical therapists, among other professionals. Home care workers performing the kinds of duties I listed above are NOT licensed under Title 43.
Any home care worker without a State license under Title 43 must be hired as an employee, meaning they are covered by state employment laws and must have state taxes withheld from their paychecks. It would also be good evidence the home care workers would be considered “employees” under federal law and would be covered by federal employment laws like the Fair Labor Standards Act.
Agencies like using an independent contractor arrangement because the agencies think it relieves them of paying their share of payroll taxes as well as the requirement they pay the workers minimum wage and overtime if they work over 40 hours in a week.
If you are a home health care worker in Georgia who is treated as an “independent contractor” call Atlanta employment lawyer Ben Kandy. You may be entitled to minimum wage and/or overtime along with liquidated damages. Federal law has recently been changed so home care workers are now entitled to be paid time and half when they work over 40 hours in a week.