AB792: Bill Text

LRB-2343/4

GMM:kjf:rs

2005 - 2006 LEGISLATURE

2005 Assembly BILL 792

October 31, 2005 - Introduced by Representatives Van Roy, Musser, Owens, Krawczyk, Hahn, Bies, Hines, Strachota, Ott and Montgomery, cosponsored by Senators Roessler, Grothman, Breske, Darling and Erpenbach. Referred to Committee on Aging and Long-Term Care.

AB792,1,6 An Act to amend 105.15; and to create 105.115 and 893.99 of the statutes; relating to: requiring a home care placement agency that places a home care worker in the residence of a home care consumer to provide notice to the consumer concerning the rights, duties, responsibilities, and liabilities of the consumer with respect to the worker and notice to the worker concerning the worker's employment status and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, the Department of Workforce Development (DWD) regulates employment agents. Currently, "employment agent" is defined as a person who furnishes to persons seeking employment or to employers seeking help information enabling those persons to secure employment or those employers to secure help.

This bill requires a home care placement agency that places a home care worker in the temporary or permanent residence of a home care consumer to provide the home care consumer with a notice of his or her rights, duties, responsibilities, and liabilities with respect to the worker. The bill requires the notice to include, at a minimum, all of the following information:

1. A statement specifying the duties, responsibilities, and liabilities of the home care placement agency with respect to the home care consumer and the home care worker and the duties, responsibilities, and liabilities of the home care consumer with respect to the home care worker, including the consumer's responsibilities, if any, for the day-to-day supervision of the home care worker; assigning duties to the home care worker; hiring, firing, and discipline of the home care worker; providing equipment or materials for use by the home care worker; performing a background investigation of the home care worker; and ensuring that the home care worker has any credential, license, registration, certification, permit, or approval that is required for the home care worker to provide adequate home care services for the home care consumer.

2. A statement of the employment status of the home care worker, specifically, whether the home care worker is an employee of the home care placement agency or of the home care consumer or is an independent contractor and a statement identifying which party is responsible for paying the wages or salary of the home care worker, paying federal social security taxes and state and federal unemployment contributions or taxes with respect to the home care worker, and procuring worker's compensation or liability insurance covering injury to the home care worker.

3. A statement that, notwithstanding the employment status of the home care worker specified in the notice, the home care consumer may be determined to be the employer of the home care worker for purposes of certain state and federal labor laws and that, if that is the case, the home care consumer may be held responsible for paying the wages or salary of the home care worker, paying federal social security taxes and state and federal unemployment contributions or taxes with respect to the home care worker, procuring worker's compensation or liability insurance covering injury to the home care worker, and complying with various other state and federal labor laws.

4. A list of the forms that the home care consumer may be required to complete and file if the home care consumer is determined to be the employer of the home care worker.

5. A statement of the penalties that may be assessed against the home care consumer if he or she is determined to be the employer of the home care worker and does not fulfill his or her duties and responsibilities as the employer of the home care worker.

6. A telephone number and address at which the home care consumer may contact DWD if he or she has any questions about the contents of the notice.

7. 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.

This bill also requires a home care placement agency that places a home care worker in the temporary or permanent residence of a home care consumer to provide the home care worker with a notice stating the employment status of the home care worker, specifically, whether the home care worker is an employee of the home care placement agency or of the home care consumer or is an independent contractor. The bill requires the notice to include, at a minimum, all of the following information:

1. A statement that, notwithstanding the employment status of the home care worker specified in the notice, the home care worker may be determined to be an independent contractor for purposes of certain state and federal labor laws and, if that is the case, a description of the duties, responsibilities, and liabilities of the home care placement agency and the home care consumer with respect to the home care worker and the duties, responsibilities, and liabilities of the home care worker as a result of that independent contractor status. That description must include the identity of the party who is responsible for paying the wages or salary of the home care worker, paying federal social security taxes and state and federal unemployment contributions or taxes with respect to the home care worker, and procuring worker's compensation or liability insurance covering injury to the home care worker. The description must also include: the identity of the party who is responsible for the day-to-day supervision of the home care worker; assigning duties to the home care worker; hiring, firing, and discipline of the home care worker; and providing equipment or materials for use by the home care worker.

2. A telephone number and address at which the home care consumer may contact DWD if he or she has any questions about the contents of the notice.

3. 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.

Finally, the bill permits a home care consumer or home care worker who is not provided with the notice required under the bill to file a complaint with DWD or commence an action in circuit court to recover from the home care placement agency certain liabilities and damages incurred by the home care consumer or home care worker. Specifically, a home care consumer may recover: 1) the amount of any federal social security taxes or state or federal unemployment contributions or taxes paid with respect to the home care worker; 2) the cost of providing worker's compensation or liability insurance covering injury to the home care worker; 3) the amount of any fine or penalty imposed on the home care consumer for noncompliance with any state or federal labor law with respect to the home care worker; and 4) the amount of any liability incurred for any injury to the home care worker. Similarly, a home care worker who is found to be an independent contractor may recover: 1) the amount of any federal self-employment social security taxes paid by the home care worker; and 2) the amount of any damages sustained as a result of any injury suffered while performing home care services. If a home care placement agency does not pay an amount determined by DWD within 30 days after demand by DWD, DWD may commence an action to recover that amount, and the circuit court may order the home care placement agency to pay to the home care consumer or home care worker that amount, plus an additional amount equal to 50 percent of that amount, together with costs and attorney fees.

For purposes of the bill:

1. "Home care services" is defined as skilled or unskilled care, including companionship services, homemaker services, nursing services, and personal care services, provided to a person in his or her temporary or permanent residence for the purpose of enabling the person to remain safely and comfortably in that residence.

2. "Home care placement agency" is defined as a person that is engaged in placing home care workers in the temporary or permanent residences of home care consumers for the purpose of providing home care services to those home care consumers, including an employment agent.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB792, s. 1 Section 1. 105.115 of the statutes is created to read:

AB792,4,3 105.115 Notice to home care consumers and workers. (1) Definitions. In this section:

AB792,4,6 (a) "Companionship services" means services that provide fellowship and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs.

AB792,4,8 (b) "Home care consumer" means a person who receives home care services in his or her temporary or permanent residence from a home care worker.

AB792,4,14 (c) "Home care placement agency" means a person that is engaged in placing home care workers in the temporary or permanent residences of home care consumers for the purpose of providing home care services to those home care consumers, including an employment agent engaged in the business specified in s. 105.01 (1) (intro.) or a person specified in s. 105.01 (1) (f) whose fees or charges are paid entirely by a home care consumer.

AB792,4,19 (d) "Home care services" means skilled or unskilled care provided to a person in his or her temporary or permanent residence for the purpose of enabling the person to remain safely and comfortably in that residence. "Home care services" include companionship services, homemaker services, nursing services, and personal care services.

AB792,5,3 (e) "Home care worker" means a person who provides home care services to a home care consumer in the temporary or permanent residence of the home care consumer.

AB792,5,7 (f) "Homemaker services" means household work, including preparing meals, laundering clothes, making beds, cleaning, performing errands and shopping, completing other miscellaneous chores, and performing any other activities that support the smooth and safe functioning of a home care consumer's residence.

AB792,5,10 (g) "Nursing services" means nursing procedures, other than personal care services, that are permitted to be performed by a registered nurse under s. 441.001 (2) or by a licensed practical nurse under s. 441.001 (3).

AB792,5,13 (h) "Personal care services" means assistance with the activities of daily living, such as eating, dressing, bathing, personal hygiene, and ambulation, but does not include nursing services.

AB792,5,22 (2) Notice to home care consumers. Whenever a home care placement agency places a home care worker in the temporary or permanent residence of a home care consumer, the home care placement agency shall provide the home care consumer with a notice of the rights, duties, responsibilities, and liabilities of the home care consumer with respect to the home care worker, except that a home care placement agency is not required to provide that notice when placing a home care worker who is temporarily substituting for the regular home care worker of a home care consumer. The notice shall be on a form prescribed by the department and shall include, at a minimum, all of the following:

AB792,6,2 (a) A statement specifying the duties, responsibilities, and liabilities of the home care placement agency with respect to the home care consumer and the home care worker and the duties, responsibilities, and liabilities of the home care consumer with respect to the home care worker. The statement shall clearly specify the home care consumer's responsibility, if any, for all of the following:

AB792,6,3 1. Day-to-day supervision of the home care worker.

AB792,6,4 2. Assigning duties to the home care worker.

AB792,6,5 3. Hiring, firing, and discipline of the home care worker.

AB792,6,6 4. Providing equipment or materials for use by the home care worker.

AB792,6,7 5. Performing a background investigation of the home care worker.

AB792,6,11 6. Ensuring that the home care worker has any credential, as defined in s. 440.01 (2) (a), or any other license, registration, certification, permit, or approval that is required for the home care worker to provide adequate home care services for the home care consumer.

AB792,6,18 (b) A statement of the employment status of the home care worker, specifically, whether the home care worker is an employee of the home care placement agency or of the home care consumer or is an independent contractor and a statement identifying which party is responsible for paying the wages or salary of the home care worker, paying federal social security taxes and state and federal unemployment contributions or taxes with respect to the home care worker, and procuring worker's compensation or liability insurance covering injury to the home care worker.

AB792,7,2 (c) A statement that, notwithstanding the employment status of the home care worker specified in the notice, the home care consumer may be determined to be the employer of the home care worker for purposes of certain state and federal labor laws and that, if that is the case, the home care consumer may be held responsible for paying the wages or salary of the home care worker, paying federal social security taxes and state and federal unemployment contributions or taxes with respect to the home care worker, procuring worker's compensation or liability insurance covering injury to the home care worker, and complying with various other state and federal labor laws.

AB792,7,5 (d) A list of the forms that the home care consumer may be required to complete and file if the home care consumer is determined to be the employer of the home care worker.

AB792,7,9 (e) A statement of the penalties that may be assessed against the home care consumer if he or she is determined to be the employer of the home care worker and does not fulfill his or her duties and responsibilities as the employer of the home care worker.

AB792,7,11 (f) A telephone number and address at which the home care consumer may contact the department if he or she has any questions about the contents of the notice.