A coalition of 30 healthcare staffing firms is seeking federal guidance on the classification of temporary nursing staff as "independent contractors," alleging this practice violates labor laws.
Four healthcare staffing firms penned the Aug. 1 letter to the Department of Labor, and 26 more endorsed it, including AMN Healthcare and Medical Solutions.
All members of the coalition employ nursing staff as W-2 employees, according to their letter. But some organizations with similar staffing models classify nurses and CNAs as independent contractors — a practice they claim carries "significant risks," and might violate the Fair Labor Standards Act.
"During the pandemic more than a half dozen technology-enabled Agencies elected to classify their nursing staff as independent contractors, taking advantage of a market that was experiencing unprecedented demand and increasing labor shortfalls," the letter says. "As a result, although the nature of temporary nursing work has not changed, we believe that a significant number of nurses and CNAs are improperly classified as independent contractors due to the number of Agencies that have chosen to operate under that model."
Temp nurses do not meet FLSA criteria for contract workers — including the opportunity for profit or loss, and investment in equipment and materials — the coalition argues. It gives three reasons why contractor status is a dangerous misclassification for nurses:
1. Dangerous for nurses: Independent contractors are denied employment-related benefits including overtime pay, unemployment, and health insurance and workers' compensation.
2. Dangerous for patients: Temporary nursing staff interact directly with vulnerable populations and are responsible for others' well-being. As such, they require a higher level of training and oversight to ensure care standards are met.
"Facilities that rely on independent contractors significantly increase the risk of substandard patient care and malpractice claims because the Agencies providing independent contractor staff do not provide the necessary clinical and professional oversight for their workers, resulting in insufficient levels of training, continuing education, and support," according to the letter.
3. Dangerous for facilities: Facilities that employ these nurses may face increased co-employment risks, misclassification claims and audits regarding unpaid overtime, unpaid payroll and workers' compensation liability.
The coalition requests an opinion letter from the Labor Department on the matter, specifically as it relates to nurses in post-acute facilities, since the industry is facing "significant" worker shortages that lead it to rely on temporary nurses.