Rule-Making Notices (Hearing Notices)

Statutory authority: Sections 105.115 (5), Stats., as created by 2005 Wisconsin Act 197, and 227.11 (2) (a), Stats.

Statutes interpreted: Section 105.115, Stats., as created by 2005 Wisconsin Act 197

Explanation of agency authority. Section 105.115, as created by 2005 Wisconsin Act 197, requires a home care placement agency that places a home care worker in the residence of a home care consumer to provide the following notices:

• Notice to the home care consumer of the consumer's duties, responsibilities, and liabilities with respect to the home care worker, unless the worker is temporarily substituting for the consumer's regular home care worker.

• Notice to the home care worker stating the worker's employment status, specifically, whether the worker is an employee of the home care placement agency, an employee of the home care consumer, or an independent contractor.

Section 105.115, Stats., specifies additional information that must be included in each of the notices and requires that the notices be on forms prescribed by the Department. Among other things, the notice to the home care consumer must contain a statement acknowledging that the home care consumer has received and understands the notice and a line for the home care consumer's signature located immediately below that statement. The home care placement agency must give the home care consumer one copy of the notice signed by the home care consumer and retain one copy in its files. Among other things, the notice to the home care worker must contain a statement acknowledging that the home care worker has received and understands the notice and a line for the home care worker's signature located immediately below that statement. The home care placement agency must also give the home care worker one copy of the notice signed by the home care worker and retain one copy in its files.

Section 105.115 (4), Stats., allows a home care consumer or worker who is not provided with a required notice to either file a complaint with the Department or commence an action in circuit court to recover specified incurred liabilities and damages from the home care placement agency. The complaint must be filed with the Department or the action commenced in circuit court no later than 3 years after the date on which the home care placement agency was required to provide the notice.

If the consumer or worker files a complaint with the Department and the home care placement agency does not pay the amount determined by the Department within 30 days after demand by the Department, the Department may commence an action in circuit court to recover that amount, and the circuit court may order the home care placement agency to pay to the consumer or worker that amount, plus an additional amount equal to 50% of that amount, together with costs and reasonable attorney fees.

Summary of the proposed rules. The proposed rules provide that the home care placement agency must have in its files a copy of the required notice to the home care consumer signed by the consumer and the required notice to the home care worker signed by the worker before the agency refers a home care worker to a home care consumer. “Refer" is defined as to bring to the attention of a potential home care consumer the qualifications of a potential home care worker.

Section 105.115 (2) (intro.), Stats., provides that the agency is not required to provide the notice to the home care consumer when placing a home care worker who is temporarily substituting for the regular home care worker of a home care consumer. The proposed rules define “temporarily substituting" as no more than 2 weeks per incident.

A home care placement agency shall retain the required notices at least 4 years from the date that the home care agency referred the home care worker to the consumer if the home care worker and home care consumer enter into an employment agreement or contract for services.

Summary of factual data and analytical methodologies. The proposed rule requires that the home care placement agency provide the required notices and have the signed copies in its files before the placement agency refers the worker to the consumer because the agency refers potential workers to a potential home care consumer for an interview, but is not generally involved further. The home care consumer and home care worker would not likely have incentive to return the signed notice to the agency after the referral has occurred. The home care placement agency must retain copies of the notices for 4 years to ensure proper record retention until after the 3-year statute of limitations has passed.

Comparison with federal law. There is no comparable federal law on the issues in the proposed rule.

Comparison with adjacent states. Illinois. Before January 1, 2008, the Illinois Department of Public Health must adopt standards for the licensure and operation of home services agencies operated in the state. “Home services agency" is defined as an agency that provides services directly, or acts as a placement agency, for the purpose of placing individuals as workers providing home services for consumers in their personal residences, except agencies licensed under specified other laws or services provided through specified government programs.

As one of the requirements for licensure, a home services agency must provide notification, in a form and manner established by the Department of Public Health by rule, to home services workers and consumers as to the party or parties responsible under state and federal laws for payment of employment taxes, Social Security taxes, and workers' compensation, liability, the day-to-day supervision of workers, and the hiring, firing, and discipline of workers with the placement arrangement for home services.

The department is not aware of comparable requirements in other adjacent states.

Effect on small business. The proposed rule may affect small businesses. The rule is designed to assist home care placement agencies in fulfilling their statutory obligation to have signed copies of the required notices in their files and to retain the notices long enough that they are available as a defense to a complaint or action in circuit court filed alleging a violation of s. 105.115, Stats. The DWD Small Business Regulatory Coordinator is Jennifer Jirschele, [phone], [e-mail].\

Fiscal Impact

The proposed rule will have no fiscal impact on state or local government.

Agency contact person. Bob Anderson, Labor Standards Bureau Director, Equal Rights Division, Dept. of Workforce Development, [e-mail], [phone].

Written comments. An electronic copy of the proposed rules is available at:

http://www.dwd.state.wi.us/dwd/hearings.htm. A copy of the proposed rules is also available at http://adminrules.wisconsin.gov. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule or fiscal estimate by contacting:

Elaine Pridgen

Office of Legal Counsel

Dept. of Workforce Development

P.O. Box 7946

Madison, WI 53707-7946

[phone]

[e-mail]

Written comments on the proposed rules received at the above address, email, or through the http://adminrules.wisconsin.gov web site no later than January 25, 2007, will be given the same consideration as testimony presented at the hearing.