The Register Citizen (Torrington, CT)
The wrong way to give rights to home care workers
Here’s a case where good intentions are about to lead to a bad outcome because the General Assembly has a habit of letting lawmakers stick policy changes into the state budget when no one is watching.
This one is so bad it could ruin the whole home care agency industry, which employs 30,000 people in Connecticut — unless Gov. Ned Lamont vetoes a sentence in the huge document that passed past week.
Most of us would agree the rise of noncompete agreements for low-wage workers is a reprehensible trend that states such as Connecticut, Massachusetts and especially California have rightly moved to stamp out.
These are the employment rules often imposed by large companies that bar employees from, say, working for a competitor for a year after leaving a job — whether or not they have access to business secrets. Coerced rules like that reduce wages by limiting competition for workers, often with no other benefit to employers.
The General Assembly this year looked at a bill to further restrict noncompete agreements in Connecticut. It had hearings, as it has in past years, but it never came up for a vote in either chamber at the Capitol.
Then, in the murky days as the state budget came together, someone snuck in a ban on noncompete agreements — applying only to “people who provide homemaker, companion or home health services.” Few lawmakers knew they were voting for it when they adopted a twoyear, $43 billion spending plan last week.
It has an unintended consequence. As it turns out, the measure prohibits home care agencies from enforcing a ban on employees stealing the very clients they are assigned to serve.
That’s a form of noncompete agreement — the only one in use by Companions & Homemakers with its 3,000 caregivers — that would no longer be allowed under the measure secretly pinned into Section 305 of the state budget bill. And that soon-to-bebanned rule, known as non-solicitation, is reasonable, unlike most noncompete agreements imposed by employers of low-wage workers.
The ban would threaten the whole model, the whole industry of agencies hiring caretakers and assigning them to work in the homes of elderly and infirm clients, Companions & Homemakers and other firms in the business say.
“It’s going to have a serious and dangerous effect in Connecticut,” said Ann Wilson, client services manager at Farmington-based C&H, which has 11 offices around the state. “It could open up in essence a free-for-all.”
Adding workers’ rights that have the effect of destabilizing an industry will help some workers, hurt others and generally do more harm than good.
Companions & Homemakers employs, for example, Heather Drake of Woodbury, who spends 21 hours a week with a client, Jayne Turner. Under the company’s rules, Drake can work for any of the 700 other home care agencies in Connecticut anytime she wants, even as she’s employed part-time by Companions & Homemakers.
Drake can also seek out her own direct clients if she wants to. The only thing she can’t do is approach Turner and her family and say, “Hey, let’s cut out the agency and make our own deal.”
She can even do that if she waits six months after leaving Companions & Homemakers, under the current company rules.
Losing that protection could destroy the agency system that employs 30,000 people, the home care companies say. More than 130 of the businesses have come together as the Coalition to Make Homecare Better. They held a last-ditch rally Wednesday at the Legislative Office Building in Hartford.
Their goal: To persuade Lamont to veto the measure in the budget. That would be a good move by Lamont, but now there’s a debate about whether a governor even has the power to veto non-spending items in the budget, as CT NewsJunkie reported.
So we might be stuck with something no one really wanted. “I’ll take a look at it,” Lamont said in an interview Tuesday. “But maybe these workers should have more options.”
On Wednesday the governor’s office added a statement: “We look forward to this prohibition becoming state law and ending a practice that diminishes the quality of life for some of our most vulnerable communities.”
That’s an emotional tug, the idea of empowering workers. But it cuts two ways. Drake comes to tears, talking with me about the threat to the agencies, sitting with Turner, the elderly client who is still sharp but slowed by two bouts with cancer and other health issues, and Wilson, the client services manager.
“I do not want to see any of my clients or anybody else having to fend for themselves, and I don’t want to fend for myself,” said Drake, who’s been with C&H for five years. “I don’t want to go fishing around trying to find clients for myself.”
If the agency system fades, companies operating as registries could coordinate billing for freelance caregivers. That’s fine for some families, but the agency system solves a lot of problems that registered independent caregivers don’t.
Workers’ advocates including Greater Hartford Legal Aid and the Connecticut AFL-CIO testified for the earlier bill that never came to a vote, saying low-wage employees should have the protections of strict limits on noncompete agreements.
Some agencies lump together the non-solicitation language with objectionable non-compete clauses “in the same agreement that the employee needs to sign,” said Lisa Levy, a Greater Hartford Legal Aid lawyer who worked on the bill and has represented affected workers.
She’s right in general, and if that’s happening it needs to stop, preferably with a bill written in daylight. The “rat” that nestled itself into the bill, not Levy’s doing, doesn’t separate the good rule from the bad.
It’s ridiculous that a narrow provision barely linked to the state budget, in a bill that never reached the floor of the state House of Representatives, should become law.
No other state bans these so-called non-solicitation agreements. It’s a fine debate to have, how best to run this system.
There’s plenty of complexity worth discussing, and Medicaid spending is at stake since much of the work is covered by that government program. Contrary to popular belief, the agencies pay their workers the vast majority of the dollars they collect from clients and Medicaid.
But what we have here isn’t a debate, it’s a banana republic imposition of law that has not been examined, based on someone secretly calling in a favor.
“We’re asking for fairness,” Wilson said, “and we’re asking for this protection for a very short period of time.”