Monterey, CA : Private Duty Caregivers Should Be Bonded, Insured & Well Trainedby Richard Kuehn on 07/04/11
I wrote on my blog 6/29 about an elder abuser of his own mother receiving a slap on the wrist (probation and restitution) and talked about the dangers of hiring a caregiver directly out of the paper, craigslist or other means as the elderly often fall victim to dishonesty or other problems like a slip-and fall case and the financial and legal costs which can follow. One other issue I failed to mention is the risk of hiring a caregiver through a referral service or a quasi-employment agency which is somewhere in the middle but can still cause headaches for the senior or their family that is hiring through such a company. Since I have opened Family inHome Caregiving myriad competitors have opened their doors. Many haven't done very well for a number of reasons. Some aren't local and the community here is weary of hiring an out of towner via an 800 number. Others don't train or screen their caregivers well and still others simply don't have the financial wherewithal to make it through all of the marketing and start-up costs associated with starting a company like mine. One recent company which came into town with a big marketing splash has a unique business model, a colleague recently told me. They hire independent contractors and therefore the burden of paying self employment taxes falls to the employee. The company isn't technically an employer and therefore they don't have to pay Social Security taxes, Medicare contributions, unemployment insurance, workers compensation insurance, etc. Such a business model is fraught with risk for the independent contractor, the company which is paying the contractor and the senior who has the caregiver working in their home.
For the independent contractor, they have to deal with the hassle of filing quarterly withholding tax returns and they aren't eligible for state disability insurance and workers compensation. Also, they are not protected by workers compensation and disability insurance and therefore if something happens on the job they may technically be not only out of work, but paying their own medical bills because they don't have these types of insurance to fall back on.
For the company paying the contractor, they face the potential that the contractor could claim they are an employee of the company (even if they have signed something which says otherwise) in case an injury or some other unfortunate incident happens. In fact, Microsoft Corp. had been notorious for hiring independent contractors until a class action lawsuit was filed in 1996 by a number of these independent contractors (Vizcaino, et. al. v. Microsoft) after the I.R.S. ruled there was a 20-factor tests which showed whether a contractor was in fact an employee. Microsoft lost the cast after the U.S. Supreme Court refused to hear an appeal of a ruling by the 9th Circuit of the U.S. Appeals July 24, 1997. In the case, Microsoft conceded that the plaintiffs were in fact employees under the common law of the state of Washington and the signing of employment agreements did not waive those workers rights for all benefits required for employees. This included a "Savings Plus Plan" (essentially a 401[k] plan and a lucrative employee stock purchase plan which allowed employees to purchase Microsoft stock at advantageous prices. After the ruling, Patrick McHale, a partner with the labor and employment practice law firm Shipman & Goodwin LLC said, "It does point out the extreme difficulty that Connecticut employers have in determining whether an individual is an independent contractor or an employee. The lesson to be learned from the reasoning of the 9th Circuit in the Microsoft case, is that all employers must examine their relationships with non-employee workers, regardless of the terms of any written contracts between the parties and without respect to what such individuals are entitled."
For the senior citizen, the risks are many. First, unless the independent contractor pays for bonding insurance out of their own pocket (which is fairly unlikely), they risk having no recourse against a dishonest employee. Most worrisome for me is the fact that since the senior or their family called a company with a big color ad, they may think that they are covered in case of theft, injury or other life threatening issues which may arise. Many senior's aren't looking at the fine print on contract, they just want to have the peace of mind to know that they have a caregiver coming into their home to take care of them. In addition, if the employee injures themselves on the job, they may run the risk of a lawsuit from the independent contractor. Even if it is without merit, who wants to deal with the hassle of defending against a lawsuit because a caregiver wasn't hired through an agency with workers compensation insurance? There are many other problems which can arise. If they did with one of our Clients, we have a substantial general liability policy which covers a multitude of scenarios. Finally, our caregivers are required to go through an extensive training program to become a Certified Companion Aide (CCA). I am a CCA as well as a Certified Hospice Companion Aide (CHCA) and the training that was received by myself and my caregivers during these programs was invaluable. Family inHome Caregiving is the only company on the Monterey Peninsula employing CCA's and CCHA's
In summary, whether you hire a caregiver through Family inHome Caregiving of Monterey or through another firm, I urge you to do it through a reputable company which does background checks and provides thoroughly trained and bonded caring caregivers. Also, make sure they have significant liability insurance and check out what the word of mouth is with local agencies helping senior citizens. I can tell you from personal experience taking care of my grandmother and watching what she went through, there are very good caregivers and very bad caregivers. Our motto at Family inHome Caregiving is to only hire the cream of the crop and only employee someone you would trust taking care of your own parent or grandparent.