The existence of an EVV system is one of many factors that may be relevant to whether a particular entity is an employer of a home care worker. As with all relevant factors, this fact alone is not determinative, but must be considered as part of the complete economic realities analysis, as to which there is no precise formula. (Please see our guidance regarding joint employment by public entities in consumer-directed programs, available at http://www.dol.gov/whd/homecare/joint_employment.htm, for more information about this test and joint employment generally.)
As with any other factor, whether an EVV system is a strong, moderate, or weak indicator of joint employer status depends upon the circumstances. If a state or other public entity runs an EVV system, is the recipient of the information collected, uses that information to track and pay for the work time of home care providers, and the consumer does not verify or approve provider time sheets, that would be a strong indicator of employer status of the state or public entity. If a state or other public entity runs an EVV system but uses the information collected solely as a quality control mechanism (e.g., to ensure that a consumer is receiving the amount of care accounted for in the consumer’s plan of care, or to ensure that a consumer is not left unattended inappropriately), and the consumer still retains the ultimate responsibility for verifying or approving provider timesheets, that would be a moderate indicator of employer status of the state or public entity. If an EVV system is run by a fiscal intermediary or other private agency and a state or public entity does not have access to the information collected, or there is no EVV system in place at all, that would be a weak indicator of employer status of the state or public entity. Whether any fiscal intermediary or other private agency is a joint employer for purposes of the Fair Labor Standards Act (possibly along with the state or public entity as well as with a consumer) requires a separate analysis of the economic realities test as to that potential employer; for any entity, the facts regarding an EVV system would be one, non-determinative factor to consider when conducting the analysis.
October 2018
Tags: Home Care
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