The Growing, Troublesome Issues Around Non-Solicitation Agreements In Home CareHome Health Care News | By Audrie Martin In August, Comfort Keepers was fined $500,000 and forced to remove language from its contracts restricting caregivers from accepting positions with home care clients up to one year after terminating employment. That contract language, dubbed a non-solicitation agreement, is a widely used clause in home care contracts to protect providers’ businesses. On its end, the Irvine, California-based Comfort Keepers is a large franchise that offers non-medical in-home support, including meal preparation, companionship and personal assistance. The company required each client to execute a care agreement containing this language before receiving services. California Attorney General Rob Bonta concluded that this agreement violated California law by restraining worker mobility, as caregivers could not be hired by any Comfort Keepers client, not just the client to whom they were assigned to provide services. In a statement issued to Home Health Care News, Comfort Keepers wrote, “We value Comfort Keepers caregivers, who are the heart and soul of each of our franchises and the Comfort Keepers brand. “As a service-based company, the quality of our care is rooted in the dedication and expertise of the caregivers who serve as employees. We invest significantly in their development to ensure the success of our services, the satisfaction of clients and the wellbeing of the caregivers. While this investment comes at a cost, we believe protecting the caregivers who become invaluable to our clients through their training and expertise is essential. Comfort Keepers is not seeking to limit or restrict any employee’s ability to earn a living; rather, we believe in a business’s right to protect its assets, ensuring the continued excellence of the care we provide. Comfort Keepers maintains that direct hire provisions do not hinder workers from finding future employment. These provisions are designed to provide service-based businesses with compensation when the care recipient elects to hire a caregiver vetted, background-checked and trained by the agency in the form of a reasonable amount for the placement services it provided. This is standard practice with service-based businesses across many industries. Furthermore, this is part of a larger and evolving issue being scrutinized by the U.S. Chamber of Commerce.” Angelo Spinola, home health, home care and hospice chair at the Polsinelli law firm headquartered in Kansas City, Missouri, was involved in the case and told HHCN he thought the attorney general was incorrect in his position. “They are applying a law that applies to non-compete agreements with employees to a client service agreement,” he said. Non-compete and non-solicit agreements In general, Spinola said that restrictive covenants are divided into confidentiality, non-compete and non-solicit agreements. These agreements are based on state laws, and certain states limit their use. Non-solicitation agreements in home care are meant to prevent clients from hiring a caregiver directly and cutting out the agency. These agreements protect the agency’s business without restricting the caregivers’ mobility, providers believe. If the contract is violated, the agency may seek legal action and sometimes request damages… |