Home Care Law Blog

Companionship services exemption in the news.

Just when you thought that health care reform had completely diverted attention away from the companionship services exemption, the exemption rears its head again.  The New York Times published this editorial recently advocating for the removal of the companionship services exemption.  It is yet another plea (they have published several similar editorials over the years) to end the companionship services exemption's availability for the homecare industry.

Of course, the editorial is long on "schmaltz", mentioning the pen President Obama gave to Lily Ledbetter and how Evelyn Coke's recent passing prevents a similar event for her, but short on substance.  It fails to address any of the economic realities regarding the exemption, its use in home care, and how eliminating it would impact the cost of providing home health care and the availability of home health care.  (Funny how critics of the exemption never mention any of the results of eliminating it, like the increased costs to state Medicaid programs or the decrease in incomes for aides.)

This editorial was quickly followed by a letter to the editor written by Steven Dawson, President of PHI.  (PHI is closely affiliated with everyone's favorite union - SEIU.  PHI has long advocated the elimination of the companionship services exemption.) Mr. Dawson's letter states that it is "long past time" for President Obama to instruct the DOL to reverse itself on the Companionship services exemption.  Mr. Dawson also mentions that one in three homecare workers are without health insurance. (Ahh, there' the health care reform tie-in.) 

Reversing the companionship services exemption continues to be a goal of SEIU and Labor.  It has not gotten a lot of attention lately, due to health care reform, but clearly it is still a target. Providers should continue to keep an eye on this.  Given the pressure Congress is currently under, I don't know if we will see this addresses legislatively, but this is the second time time in the past year the idea of having the DOL eliminate the exemption through the rulemaking process has been proposed.  (You may recall a group of 15 senators asked the President to do this very thing last summer.)  DOL would have to go through the rulemaking process to do this, which would give providers a chance to comment.  Unfortunately, as anyone who has participated in this process knows, the agency does not have to listen to your comments.

Of course, this may continue to be a non-issue, due to the fading prospects for Big Labor's agenda.  As this trend continues, it may be harder and harder for the Big Labor to convince the administration to move on some of these issues, especially with health care reform still on life support.  This is just one more thing to keep an eye on, and to be ready to take action on, as the year goes forward. 

The Massachusetts Election and HomeCare and Hospice

Well, by now, I am sure you are all aware that Scott Brown won in Massachusetts.  This is not a political blog, per se, but the news this morning is covering how Scott Brown's election will effect the passage of a number of bills that are of concern to the home health, private duty, and hospice industries.

The first issue getting a lot of attention is whether or not Scott Brown's victory is the death knell of health care reform.  Many Democrats appear to be signaling that it is time to back away from the current bills and rethink health care reform.  This article also has some great quotes about the status of health care reform after last night.   Some Congressional Democrats are saying everything should be put on hold until Scott Brown is sworn in (you can read that story here).  Barney Frank was quoted as saying they may need to start over.  Susan Collins even specifically mentioned starting over and getting away from a bill that included the steep cuts to Medicare.  These articles give a pretty strong impression that the current bills, which were terrible for the home health industry are dying, if not completely dead.  If this is the end of health care in its current form (which seems likely) the election last night may have saved the home health industry from the draconian cuts proposed by the House and Senate.

Of course, this is not done yet.  Providers need to keep a close eye on what is happening.  Until the bills are officially scrapped and Congress starts over, the cuts are not dead.  Furthermore, if Congress starts over, the home health industry will need to keep a close eye on what they propose and, if necessary, be ready to respond loudly and clearly (you may find your representatives more willing to listen now).  Based on today's reports, it seems that health care reform may ultimately go forward, but in a much different fashion.  If so, home health providers may be able to breathe a sigh of relief that the $55 billion dollars in cuts will not happen.   

Another area of interest to the home health, private duty, and hospice industry is the Employee Free Choie Act.  At least two outlets (here and here) are predicting that the election of Scott Brown is the end of the Employee Free Choice Act for this year.  Scott Brown was clear in his campaign that he was opposed to the EFCA.  This is another bit of great news for the industry. (Although it is only a prediction.)  This aspect of the election has not gotten much press, because of the focus on health care reform, but it appears that with the election of Scott Brown, supporters of the EFCA no longer have the votes they need to pass the bill. 

[There was an interesting side note during the campaign in Massachusetts.  SEIU members were out campaigning for Brown while SEIU's leadership was campaigning for Coakley.  Here is the video.  

This video says a number of things, but I like to think it shows that  the union's leadership is out of touch with its members.  Always a good point to raise when in the midst of a union campaign.)

Interesting Information on SEIU organizers' tactics

Here is a video, courtesy of Breitbart TV, that has several interviews of individuals who were involved in the NUHW - SEIU fight out in California.  It offers a very clear explanation of why providers need to be afraid of the Employee Free Choice Act.  This is the kind of union vote you can expect if anything like card check passes.

It also makes it clear that you need to be proactive and work to educate your employees in advance, because once SEIU shows up, they do not appear to be restrained by notions such as honesty, professionalism, etc.  They will do whatever it takes to get your employees to sign cards and, later, to vote for the union.  Your employees ought to know, in advance, that they do not have to put up with this kind of behavior and to suspect what they are being told by union reps.  If your employees have questions, you can always show them the video.

Ok, now, on to the video:

More on SEIU's efforts in Illinois

There is an article in today's' Southtown Star about the "union election" of the self-directed care workers in Illinois.  I have posted on this issue previously, but the votes are going to be counted next week.  This article primarily focuses on one parent and her efforts to get more information from the state on the process.  

It also confirms a point I have made on this blog in the past - SEIU and other unions are targeting self-directed care workers for organization, because there is no one to counter them.  According to the article, the third party agencies in Illinois who review time sheets and pay the self-directed care workers were strictly prohibited from saying anything about the unions.  SEIU went so far as to send letters to the third part agencies telling them that they would lose their state contract if they said anything negative about unionization.

Given SEIU's track record of being less than candid during organizing campaigns the lack of a third party to counterbalance SEIU's "promises" is a huge advantage to the union.  These families only hear what the UNion organizers tell them and they have no obligation to be honest.  There is also no one to counterbalance the "high pressure" tactics SEIU is famous for using.

Even in this article, the mother that was interviewed had SEIU organizers show up at her door on a Sunday afternoon. They got her information from the state so that they could visit her at "her place of work."  Really, that is great, talk about privacy.  If you are a self-directed care worker, the unions may get your home address and other contact information from the state.

The point here is this, SEIU targets the self-directed care workers, because it is easy to win an election when you have no one to oppose you and to share the other side of the story.  For example, any promise of increases in pay requires the state to come up with more money.  Given the current economic climate, increased reimbursement rates seem less and less likely.  They easy win then allows the union to collect more dues.  In Illinois, the self-directed workers who voted no to the union will still have to pay the unions dues.  If the rates do not increase, all of the self-directed care workers will actually be worse off than before the union.  (I bet the organizers did not mention that.)

This matters to home health and hospice, because the self-directed care workers are usually the first step in the unions efforts.  Once they get the self-directed care workers, they begin to target the other home care providers.  They use the self-directed care workers as an "example" of what they can do for your employees.  Often, the self-directed care program is a convenient way for SEIU to interject itself into the state provider system.  In Indiana, SIEU has actually bussed in Illinois members to appear at rallies to make it look like they have a lot of members in our state.  Hmm, that is convenient.

As the vote in Illinois unfolds, providers in other states should be watching to see what stories develop.  Often, these stories can be helpful to providers in other states that are at odds with SEIU.  I suspect, we will see stories like that coming out of Illinois as the providers begin to see that they may not have been told the whole story.  Stay tuned.

UPDATE:  Here, from Michelle Malkin, is more on Illinois and feedback regarding SEIU's efforts around the country.  

Details on EFCA compromise bill

After I posted the EFCA update yesterday, my partner forwarded me this Washington Post article.  It includes details of the "compromise" EFCA bill.  The article reaffirms that card check is off the table.  The compromise is still the "quickie election".  However, Senator Specter did not detail how limited the time between the union notifying the employer it had enough cards and the date of the election would actually be.  The article also mentions an "equal time" provision.  If the employer holds mandatory anti-union meetings, the union has to be given access to the employees as well.  (LIke the union won't have access anyway.)

The bill would also triple the penalties for employers who break the rules.  I can't help but wonder if it will triple the penalties for unions who violate the rules.  Oh, wait, I forgot, the unions don't violate the rules.  (That was sarcasm, jut so we're all clear.)

Finally, Specter said the bill would include baseball style arbitration.  This means the arbitrator will choose between the offers of the union and the employer, not just "split the difference."  Specter, and others, claim this will force everyone to be more reasonable, but this is still bad for employers.  

Another issue for arbitration will be how the DOL implements this contract arbitration.  DOL will need to promulgate regulations and consider the number of pro-union appointments to the department of labor in the last several months (not to mention a White House that is very close to big labor) it makes me think the regulations may make this process even more beneficial to unions.   

Union advocates complain that many unions never get their first contract, but this is likely to swing the pendulum in the other direction, every union will get a contract, without the need for both sides to come to an agreement.  I can't help but wonder how saddling small businesses, especially home health, hospice, private duty providers, with a contract arrived at through arbitration will hamper the small business in America.  (Some will say that the union wants the company to stay in business, but my response to that is for every "unreasonable" employer there is an unreasonable union negotiator as well.  At least when the employer was unreasonable everyone still had a job.)

EFCA rears its head again

It appears that the Employee Free Choice Act is only "mostly dead".  Arlen Specter addressed a meeting of the AFL-CIO and stated that a compromise EFCA bill would be passed by the end of the year.  Similarly, Hilda Solis told the AFL-CIO members that she will will "work with the White House so together we make the strongest case possible for the Employee Free Choice Act.”  Senator Harkin has also recently indicated the Senate will move forward with the EFCA before the end of the year.  Providers should continue to keep an eye on this and continue to contact their Senators to express their opposition to the EFCA.  The unions are not going to let this go away without a much larger more protracted battle, because passing the EFCA is their primary legislative goal.

Although the EFCA continues to rise from the dead like Dracula in a bad vampire movie, the first article indicates Card Check is still dead.  I think providers should not assume card check is dead until the EFCA fails to pass or it passes without card check in it.  That means until one of those two things happen providers need to keep reminding their elected officials how un-American it is to take away the secret ballot from employees.

The first article states that the unions have indicated a willingness to drop card check, "in favor of other provisions that would fill their depleted ranks."  This quote just serves as a reminder of what the EFCA and card check is really about, card check is simply an effort to make it as easy as humanly possible for unions to organize workers, because they need the money.  It also indicates that a compromise may have other objectionable provisions designed to lower the bar for union organizing.  At this time, the only compromise I have heard is "quickie elections", but that does not mean something else might not come up as this piece of legislation continues to survive.  I hate to repeat myself, but providers should keep a close watch on this matter.

SEIU and others organizing in-home caregivers in Illinois

We have not heard much about SEIU's efforts to organize homecare in the last few weeks, but there was a story in yesterday's Chicago Tribune that should serve as a reminder of what SEIU's real intentions are and that they are not going away.

The story details the efforts of SEIU, and another union, to organize in-home caregivers in Illinois.  These are not agencies or individuals working as self-directed care workers.  These are family members who live with their disable loved ones.  One lady has been caring for her son for 23 years and receiving money from the state to assist her with caring for her son.  She does not have an employer.  She does not have employees.  She is about to end up in a union, even though the article indicates she does not want to be in a union.  

Call me old fashioned, but if I am "self-employed" and receiving money from he state to care for a loved one, I don't need a union to help me negotiate with my boss.  As for dealing with the state as a provider, I need a trade association, not a union.

The union's real goal is made clear in this article when it mentions that the union's dues would be up to 2% of the monthly stipend.  Caregivers will have to pay this amount, even if they do not join the union.  So if you are a caring for a family member through this program in Illinois and do not join the union, SEIU or the AFSCME will get 2% of your family member's stipend.  That means the family's income goes down 2%.  

This is just another effort by unions to obtain more dues revenue.  I have linked to articles that detail the unions' current financial problems.  These individuals are an easy target, because their is no one to educate the families and provide any counter to the unions efforts.  They just start calling on these families, making grandiose promises, getting cards signed and then have an election.  The article mentions the use of "strong arm" tactics by the union.  It is much easier to strong arm these individuals, because they do not know their rights or how to report misconduct.  The union will most likely win the election, because there is not really any opposition.  So for very little effort they add 3,000 new sources of revenue...errrr, I mean...members.  (Even if the sources of revenue object.)

The article also points out the HUGE potential conflict of interest.  If the union calls a strike over the amount of rates being paid by the state, are family members really going to stop caring for their loved ones?  Will they be penalized by the union if they do?  And even if the union strikes, where is the state going to get more money.  SEIU and AFSCME seem to have missed the memo that health care reimbursement rates are declining due to state budget crises. (Or, more likely, they don't care, they just want the dues.)

If I sound irritated, it is because I am.  This overreaching by the unions only helps the union add revenue, it is not going to help these families, in fact, the first thing the family will notice is that its income goes down as the SEIU starts taking its dues.

Providers need to be aware of this,because it shows SEIU's real focus.  It is also important to keep track of these efforts, because organizing the independents is one of the first things SEIU likes to do in a state.  It gives them a "victory" to tout and gets their "foot in the door".  They then start moving up the chain and home health, hospice and private duty are not very far up the chain from these family caregivers.

Employee Free Choice Act - You're not out of the woods yet

There are a number of articles today regarding last week's news of the card-check compromise.  A number of them point out that, while the Employee Free Choice Act without card check is better than the EFCA with card check, it is still a bad piece of legislation.  For example, this column in yesterday's Wall Street Journal discusses the problems employers will face with the binding arbitration provisions.  This blog also discusses the fact that even with the compromise the Employee Free Choice Act is, at best, flawed.

This article in the Atlantic from yesterday afternoon sheds some additional light on the maneuvering in Congress.  From the quotes in the article, it sounds like the major business lobbies are targeting the arbitration provisions as heavily as they targeted the card check provisions.  This makes sense, because with the binding arbitration provisions, once the election is over, the union could very well take unreasonable negotiating positions in order to force the contract negotiations to the Federal Mediation service which, would very likely lead to a contract with terms that the Union would otherwise have not been able to obtain from the employer through negotiations.  My partner has suggested that it would create a system where the union would come to the table with extreme demands figuring that, at worst, the Mediator would take the middle position.  By taking extreme positions the Union would hope to force the "middle position" closer to its real goals.

Of course, the union would say that the Employer could do the same thing, but the mediation process is likely to be more favorable to the Union which would mean the employer has not motivation to force the issue to a mediator.  The employer is likely to want to avoid binding arbitration.

Another issue mentioned in one of the linked articles is the idea that binding arbitration is as undemocratic as card check.  The mediator sets the terms of the contract and the union members do not get to vote on it at all.  (Isn't this whole process supposed to be about the employees?)  I think that is another point that is as easy to make as card check, because it again denies the employees a voice or a right to vote a contract up or down - when did democracy stop being a good thing?

For home health, private duty, and hospice providers, it is important that you keep monitoring this and keep calling your Senators.  The reason card check was pulled was because the moderate Democrats in the Senate heard the calls from their constituents.  Now is the time to keep the pressure up, not to relax. This bill is still alive, still bad for businesses and job growth and the unions are not going to simply accept defeat.  You should continue to let your Senator know that you are opposed to this bill.  If you have not mentioned binding arbitration before, now is a good time to raise your concerns about that.  (If you are represented by one of the Senators that made card check go away, you might want to thank them.)

Card Check Dropped From EFCA

According to today's New York Times, as part of a cpromise to secure 60 votes, the card check provision has been dropped from the Employee Free Chooce Act. The compromise does alter the voting requirements, including shortening the deadline for when an election must occur. It is not perfect, but for now employees will continue to have the right to a secret ballot election. I am on the road and posting from my iPhone. I will post more on this subject later today.

Employee choice, good for employees, not union members.

The next time you hear an SEIU spokesperson (or any other union for that matter) mention the need for the Employee Free Choice Act to protect employees from the evil employers, you might mention this story to them.  This story might also be useful in an organizing campaign so that employees know who it is they are dealing with.  

The article details SEIU's efforts to deny members efforts to leave SEIU and join another union.(Think of SEIU like the labor union equivalent of Bendini, Lambert & Locke.)  The article points out the while SEIU is in favor of Card Check for your employees, it opposes it for SEIU members.  SEIU is also being accused of intimidating members to keep them from switching unions. (Huh, isn't that what they say only evil employers will do.)  Another point to raise with your elected representatives is that if SEIU will do this to their members, what will they do to get non-members to sign a card.  This is why secret ballot elections are so important.