Over the last few months, several misinformed news stories have attacked companies that provide access to independent workers, often referred to as “1099” because of the form filed with the IRS. We’ve seen industry leaders leveraging scare tactics to preserve their own business models – worried they’ll lose big if an independent workforce is embraced.
Misstatements include claims that joint employment suits are exclusively a 1099 issue; independent contractor models are new and are used to take advantage of workers and companies alike; and agencies or platforms can easily absolve themselves from legal obligations.
For more than 15 years, I’ve been advising companies on technology, processes, operations and compliance around worker classification and the evolving workforce economy. It’s time we set the record straight so we can move forward and build a more expansive and sustainable healthcare workforce.
Worker misclassification suits aren’t new
The best thing for communities to do is partner with a company that has experience in the field and expertise in the nuance of the law.
The American Staffing Association recently issued a paper coaching healthcare communities on a “checklist” of questions to evaluate a potential staffing or workforce partner, advising communities to only trust platforms or agencies that classify their workers as employees, suggesting that platforms with independent workers are prone to take advantage of customers or expose them to unnecessary risk.
Generally, many of the questions on that list are important to ask – every partnership choice should be carefully vetted. But, worker classification cannot be reduced to a checklist. The law is nuanced, fact-specific, and there are many different legal tests to consider when making a worker classification decision.
Some industry leaders have conjectured or claimed that a platform with the 1099 model can “absolve themselves” of responsibility and leave healthcare communities with the liability for an independent worker. That’s not possible in this area of the law – there are clear and enforceable compliance structures that protect the professional, the care community and the platform. If a company has misclassified a worker, there are a number of ways for an agency or a platform to be held accountable.
Communities should focus on working with platforms that have a sharp focus on compliance and truly partner with you to achieve the best outcome for your building, your workforce and your patients. When considering a workforce partner for your community, carefully review the legal paperwork, the business indicators and the way they talk – both in public and private – about their value proposition. You should also vet their legal counsel to confirm they have deep expertise in employment law.
Joint employment concerns exist in a W2 model, too
The legal reality is there are good and bad actors utilizing both models, and a joint employment claim can arise in either model. Those who claim otherwise are simply using 1099 as a “red herring” to detract from their own business challenges without considering how such misinformation will inhibit the progress of critical solutions to address workforce gaps and prioritize patient care.
Just because a company utilizes a W-2 model doesn’t mean they are complying with all applicable laws, and doesn’t mean that healthcare communities are automatically protected from joint employment risk.
The reality is that the traditional staffing industry is changing. And instead of adapting and finding ways to thrive in a changing market, they have resorted to scare tactics to keep their hold. That’s not in the interest of the worker or healthcare community. New solutions – and an open mind – are needed for better outcomes, and the 1099 independent worker model is one of those solutions.
Independent contractor models are a path forward – not a threat
The 1099 model isn’t meant to replace the W-2 model – it’s simply meant to offer options. For some, having an employer manage their taxes and healthcare plan is exactly what they want. For others, they want freedom from employment, to choose their schedule, to accelerate their career at their own pace, and to not just work but live on their own terms. Healthcare professionals are capable of choosing whether to work as employees or as independent professionals. Not only that – they deserve to be able to make this choice. Physicians and advanced practice nurses have been working as independent contractors for decades, and all nurses should have the same opportunity.
The point isn’t to determine which model is better and then apply it to everyone. The point is to empower every professional to make the decision that’s right for them, instead of deciding for them. We can do this by creating a marketplace that offers choice, visibility and flexibility to both workers and care communities.
Meeting the demand of an evolving, valuable and informed workforce is critical to the long-term welfare of the healthcare industry. Instead of being afraid of competition and different models, let’s find ways to partner together to achieve the best outcomes for patients.
Regan Parker, General Counsel and Chief Public Affairs Officer for ShiftKey, is a leading expert on the future of work and the legal, regulatory and policy challenges around it. At ShiftKey, Parker is revolutionizing the workforce by addressing systemic barriers through a strategic focus on independence, freedom, and choice, focused on empowering the individual to define their own work/life balance.
The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.
