Personal Care Provider Connection Building a Network of Personal Care Providers Across the Commonwealth Virginia Association of Personal Care Providers P.O. Box 11361 Richmond, Virginia 23230 804-282-7451 Email: [email protected] Winter 2015

Table of Contents 

From the President



VAPCP-PAC



Legislative Update



Network & Privacy Liability Brief



Supreme Court Disagrees With Abercrombie’s “Head in the Sand” Approach in Religious Discrimination Hiring Practices



Positioning Your Aging Services Organization for Success in the New Era of Health Reform



Interns – To Pay or Not to Pay?

Volume 11

From the President As the saying goes, “Time flies when you are having fun.” Congratulations to each of you for meeting the many challenges and adjusting to the many changes that you, as providers of personal care services, have faced during the first half of 2015. We are faced with more changes and challenges during the second half of 2015 and into 2016. During the third quarter of 2015 we are faced with a conversion of API numbers to NPI numbers for billing the MMP’s. We are faced with a conversion to ICD 10 coding. We have new DMAS regulations and in 2016 we will see changes to the CCC program. Together, as members of The Virginia Association of Personal Care Providers we can meet these challenges through education, communication and team work. The Board Members of The Virginia Association of Personal Care Providers appreciates your membership. We are working many volunteer hours to attend meetings with DMAS and the MMP’s on your behalf. We serve on advisory committees for DMAS and with the CCC and on the MMP’s advisory committees. Your Board Members have worked diligently with our Lobbyist Tripp Perrin and Chuck Duvall (Lindl Corporation) and have met with many of our state legislators to successfully procure a 2% increase in our reimbursement rate that went into effect July 1st, 2015. Please read the PAC article to see how you can help us continue to build on the success we have started.

The VAPCP Spring Regional Conferences were a huge success. These Conferences provide an educational opportunity for our members and non-members. They also provide networking opportunities and help fund the ongoing operation of the VAPCP. I would like to take time to personally thank each of you who attended our Spring Regional Conferences and made them a huge success. I would like to thank our presenters who volunteered their time and shared their knowledge with us. I would like to thank Freeman Thompson who sponsored our lunch at three locations. Last Visit our website but not least, I would like to thank our Board Members who worked many hours to http://www.vapcp.org put together the Regional Conferences. Speaking of Conferences, the VAPCP Annual Fall Conference is just around the

2015 VAPCP Board President 804-333-1590

William Hurt

Past President 804-323-9464

Olivia Jones

V. President 757-405-6320

Troy Ilapit

Secretary 757-596-3941

Deborah Ogren

Treasurer 434-575-5200

Steve Mize

Policy Chair 804-556-4229

Bonnie Gordon

Membership Chair 757-442-4000

Silvia

Perez

Legislative Chair 804-288-9645

Charles Mack

Southern Region 434-246-3110

John Thurman

I look forward to seeing each of you at our Fall Conference in October! Sincerely, William E. Hurt, Jr. President VAPCP

VAPCP-PAC Game Changer -- VAPCP Political Action Committee (PAC) is Formed! We Need Your Voluntary Contribution by June 30th!! – ACT NOW!!

Eastern Region 757-989-0090

Gail Stathers

Central Region 804-674-7130

Sean Archer

Northern Region 703-662-7500

corner. You will be receiving a save the date very soon. We are planning to have the Fall Conference in Williamsburg at the same location as last year on October 7th. Our Keynote is a National Speaker who will have a track about how to grow your agency. We will have DMAS presenting about the New Revisions to Regulations and KePro Atrezzo presentation with question and answer session. Of course, will have a session with the CCC program and MMP representatives available to answer your questions.

Johnny Wilkinson

At-Large Member 804-378-7780

Jack

Nelms

At-Large Member 804-282-5402

Lisa

Davey

At Large Member 757-443-2971

Peggy Beasley

At Large Member 804-861-9472

Gerry Rawlinson

At-Large Member 434-607-4080

Tim

Petry

At Large Member 434-835-0124

Tashunna Bauldwin

The PAC Board has been very active in contributing as have association members and nonmembers. The PAC has received over $26,000 as of June 9, 2015. A total of 20 individuals or business have contributed to the (PAC). The PAC has made distributions to the following General assembly members facing primary opponents Chris Head - $1,000; Bill Howell $1,250; Emmett Hanger - $1,000; Steve Martin - $750; and Johnny Joannou - $500.00 for a total of $4,500. We need to raise at least $10,000 more to fully fund our PAC plan between now and election – and we need to have the dollars in hand by June 30th to make that happen! As Noted in Our Statewide Meetings in April Your Company Needs to Support the Industry After a Very Successful Legislative Session!! Now is Your Chance to Step in a Big Way & Continue the Momentum! DON’T WAIT – YOUR HELP IS NEEDED NOW – EVEN A SMALL CONTRIBUTION WILL GO A LONG WAY! All 140 members of the Virginia General Assembly are up for re-election next year, so this is a perfect time for our association and its members to launch this concerted effort to support the campaigns of candidates who share our values, are receptive to our concerns, and support our industry’s success. The formation of the PAC and our solicitation plan builds on our hiring last year of the professional lobbying firm Lindl Corporation, which has gotten off to a fast start representing our industry’s members and their interests in Richmond. In addition to securing a 2% rate increase in the final budget passed by the General Assembly, we also have seen a significant increase in valuable communication and advice from the Lindl team. Many members have already stepped up in a BIG WAY – but we NEED YOU to do the same. As our industry is subjected to greater scrutiny and more burdensome regulations, your donation will be a small but critically important investment in our industry’s continued health and vitality. Again, thank you in advance for your consideration. Your participation as a member

of the VAPCP-PAC will help to shape a positive and forward-looking legislative and regulatory policies for the homecare industry. Warm regards,

John Thurman Chairman VAPCP-PAC (434)637-1385 – [email protected]

Political Action Committee (PAC) In order for our PAC to be successful please make a donation today!

______$2,500.00______$1,000.00 ______$750.00 ______Other

Please make your check payable to VAPCP-PAC* and mail this form to: VAPCP-PAC c/o Lindl Corporation PO Box 170 Richmond, VA 23218 * Please use a separate check for your PAC contribution. Do not include your contribution as part of your dues. In order to allow us to fulfill the record-keeping and disclosure requirements of Virginia law, please provide the following information: Name Street Address City, State, Zip Code

__________

Occupation Employer City/Town of Employment  Please check here to confirm that you are a United States Citizen or lawfully-admitted permanent resident (a “Green Card” holder), and that no one has advanced or will reimburse funds to you for the purpose of making this contribution. Contributions to VAPCP-PAC are not tax deductible as charitable contributions for federal income tax purposes. Virginia law requires VAPCP to use best efforts to collect and report the name, address, occupation, employer and location of employment of each individual whose aggregate contributions exceed $100 in a calendar year.

Legislative Update From your Government Relations Consultants – Chuck & Tripp [email protected] – 804-240-0973 [email protected] – 804-615-7884 2015 General Assembly – The GREAT News…   

It was a very positive session overall – a 2% raise for all VAPCP members topping the list and we were able to help submarine some bills that would have been burdensome to the industry. There was more engagement than usual from VAPCP Board members. Charlie Mack and Steve Mize testified in front of the House Appropriations Committee related to the CCC program and all of the challenges it has – their insights were news to many key members of the committee.

…and the BAD news…  VAPCP is not known in most areas of the General Assembly – you are not a force and actually are at times confused with the consumer directed program folks due to a similar acronym. This clearly needs to change and it will. Legislators know the Lindl team well – we can and will get the door open and work for you on the ground but over time the legislators need to know YOUR face and trust YOUR advice on issues related to the industry.  The money committees in the House and Senate are much more focused on other provider groups – hospitals, nursing homes, etc. This needs to change (see John Thurman’s article relative to PAC contributions). …but we are here to help – the FUTURE is bright…  Together, we can and will change the awareness of the VAPCP and the understanding of the value that homecare brings to citizens across the Commonwealth. This is not going to happen with a couple of press releases or Facebook posts, but rather through active engagement with members of the legislature back in the their districts in the off season (March thru December).  Tripp has worked for two Governors and has many years of experience in the homecare field, so we understand the business and also just as importantly understand what we don’t know. Chuck has been lobbying the halls of Virginia’s Capitol for nearly 40 years – so you have the right team and we appreciate the Board’s confidence in us to make good things happen. However, we cannot do this alone – our clients are the ones with the power and ability to make things change over the long-term – we simply view ourselves as the quarterbacks to make that happen. …sounds great, but how do I personally help?...  Each member needs to be engaged both personally and financially in the process (again, see Thurman article). It is important to know that politics really comes down to two key ingredients people and money – mix them right and you win, wrong and you lose – problem is that VAPCP has really had neither in prior years. That approach has proven a penny wise and a pound foolish…in almost all cases your revenue and business regulations are almost all dictated by what happens down at the state Capitol. Complaining is not going to solve the problem – active engagement through relationships is the only answer.  VAPCP has the ability to be successful in the political process as the group has a good number of members (and growing!) that are geographically diverse. We had a

good session laying some very initial groundwork and the PAC has gotten going in full force. …so, what’s next?...  We will work with the Board to define some key issues for short term and long term consideration.  We will work with the Board to better educate policy makers on what VAPCP members do, the challenges you face and the incredible service your teams provide.  We will do this through an engagement strategy for members that want to be involved and through a fully funded VAPCP PAC. …In closing remember:  Your Voice Matters on Homecare Issues  Many Efforts Underway to Destabilize the Industry – lots of competition for resources  It Take Time & Effort to Get Involved but it Only Helps YOU  Patience & Persistence are the Keys for Long-Term Success  Great Things Can Been Achieved with Grassroots Support  Legislature is Made Up of Hard Working Men & Women that need your support and to hear from you!

Network & Privacy Liability Brief

BY: Ben Winters, CIC It may sound odd, but cyber hackers conduct their “business” much in the same manner as you and me. Of course they’d like to achieve the “big hack” just as you would like to land the big account for your business. While it’s important to focus on acquiring big customers, it’s crucial you focus on volume by adding smaller customers to maintain your pipeline. Smaller customers require a shorter sales cycle, have lower acquisition costs, and provide a more predictable revenue stream. Hackers look at your small business as their “small customer.” Small business is crucial to maintaining their scam. While organizations like Target, Zappos, and Sony make attractive targets (all of which have suffered a data breach), they are much more difficult to penetrate. While cyber events like these make big headlines, they are actually in the minority when it comes to data breaches. Most data breaches occur because of stolen laptops, USB flash drives, followed by systems failure, loss of paper records, and hacker attacks. Your business Ben Winters, CIC has a greater chance of being breached because an employee loses a laptop than being hacked! Winters-Oliver Insurance Agency Experts say that between 50% to 75% of small businesses suffer a data breach each year. If this number sounds high to you it’s because most of these businesses never know they suffered a breach and therefore did not report the breach as required by law. Most states have laws for data and privacy breach. Common regulations require the business that suffered the breach to notify effected customers by phone, mail, or email and provide credit monitoring for 12 months. Some states require the breached business to pay for credit cards to be reissued to their customers and levy regulatory fines that can reach six digits. The maximum HIPAA fine is now $1,500,000. Small businesses sometimes believe they are not subject to the consequences of a data breach because they use a third party credit card processor. While this lowers exposure it certainly

does not eliminate the exposure. First, unauthorized collection of customer payment information is only one cyber exposure faced by a business. Second, it is likely that your business will be named in a suit if a data breach occurs meaning you will need to defend yourself. The general liability policy does not provide coverage for a data breach nor defense of a data breach. Third, most credit card processors will not accept liability for a breach if your systems are not not PCI compliant shifting responsibility back to your business. “…just because a merchant outsources all payment processing does not mean that the merchant won’t be held responsible by their acquirer or payment brand in the event of an account data compromise.” - www.pcisecuritystandards.org/faq The cost of responding to a data breach can be staggering. Time is a major cost contributor. Most businesses do not discover a breach right away. Target’s breach occurred on Black Friday (11/27/2013) but it was not discovered until December 15, 2013 – almost three full weeks after the breach occurred. In 2007, TJX (T.J. Maxx, Marshalls) suffered a data breach where 45.7 million customer credit cards were stolen. Eleven months elapsed from breach to discovery. The breach becomes more severe with the passage of time. Let’s look at the consequences to a business if only 200 customer records are breached. According to the Ponemon Institute, the average cost of a data breach is $201 per customer record ($359 per record for healthcare organizations).1 200 records X $201 for customer notification, credit monitoring, crisis management = $40,200 This number does not include regulatory fines or judgements awarded. For the most part it includes the cost of responding to the breach and it’s effect on revenue. The following are often cited as the top three causes of a data breach:2 Causes Examples Unintentional Employee Action

Libelous post on social media

Lost or Stolen Computing Devices

PDA’s, Smartphones, USB Flashdrives, etc. Cloud server provider suffers a breach

Third Party Error

The top two reasons cited for data breach; inadequate budget and lack of trained staff or end users. The health care industry should be especially diligent when choosing a cyber liability policy since they store so much personal health information (PHI) and personally identifiable information (PII). As medical facilities continue the conversion to Electronic Health Records (EHR) privacy protection and data risk management will be crucial. Perhaps more than any other industry, health care is subject to the most regulation (and highest penalties) with regard to data and privacy protection. HIPAA, HITECH, and now HHS mandated audits just to name a few. As the threat of hacking and cyber risk becomes more prevalant, many businesses are looking for ways to transfer this risk with many looking to an insurance policy. Cyber Liability Insurance is gaining popularity and becoming better priced as underwriting data and knowledge of the risk develops. Business owners and consumers should know that unlike a general liability or commercial property form, cyber liability forms differ from carrier to carrier. Some have as few as three claims triggers while some have has many as eight. Some policies respond to regulatory fines while others exclude this coverage. Cyber Liability Insurance has been available since the late nineties but is becoming more relevant as technology plays a larger role in our businesses and our lives. When purchasing a cyber liability policy, one should be sure to may careful attention to the nuances in these policies and work with an insurance agent who is knowledgeable of the coverage. Ben Winters is a Certified Insurance Counselor (CIC) and insurance professional who works extensively in the management liability space. He advises businesses on insurance and risk

management solutions to protect their assets and operations. He can be reached at 804-7465178 ext. 112. 1. Ponemon Institute. 2014 Cost of A Data Breach Study: Global Analysis. See Part 4 for calculation method. 2. What Every Insurance Professional Should Know About Network Security and Privacy Liability. Executive Perils 2012.

Supreme Court Disagrees with Abercrombie’s “Head in the Sand” Approach in Religious Discrimination Hiring Practices Case BY: PATTY GILL Employers of all sizes across all industries had been anticipating the Supreme Court’s ruling in the Abercrombie-headscarf case – a religious discrimination lawsuit that has received extensive attention from the media, civil liberties activists, and human interest groups. The Court finally ruled on June 1, 2015, disagreeing with the trendy retailer’s argument that it “did not know for certain” that an applicant wore a headscarf for religious reasons. Everyone knows Abercrombie & Fitch as the collegiate-style clothing boutique popular among teens and young adults. Samantha Elauf was a 17-year old who applied for a job at Abercrombie in 2008. Ms. Elauf, a practicing Muslim, wore a hijab, or headscarf, to her interview. The store manager gave her a rating that would qualify her to be hired, but had concerns about whether her hijab would violate the store’s dress code, called its “Look Policy.” After consulting with the district manager, Abercrombie declined to hire Ms. Elauf based on concerns about her hijab.

Patty Patty Gill, PLC

The Equal Employment Opportunity Commission sued on behalf of Ms. Elauf, arguing that Abercrombie violated Title VII of the Civil Rights Act of 1964 by refusing to accommodate Ms. Elauf’s religious beliefs. Religious discrimination cases are unique from other Title VII claims, in that they require an employer not only to refrain from discriminating on that basis, but also to affirmatively accommodate one’s religious beliefs, unless it would impose an Gill undue hardship. For example, if an employee’s religious beliefs prevent her from working on Sunday, her employer must consider and possibly accommodate that belief. Abercrombie argued that it did not have “actual knowledge” that Ms. Elauf needed an accommodation for religious purposes. Abercrombie’s approach was to, essentially, put its “head in the sand.” In other words, store management did not know for certain that Ms. Elauf wore a headscarf due to her faith—it was evidently not discussed in the interview. Therefore, they did not know Ms. Elauf needed an exception to the “Look Policy” for religious reasons and had no obligation to accommodate. Six years of litigation later with wins and losses on both sides, the case reached the U.S. Supreme Court. On June 1, 2015, the Court ruled in favor of the EEOC in an 8-1 decision (Justice Thomas dissented). Specifically, the Court held that employers cannot negatively take into account the fact that an employee or applicant may need a religious accommodation, whether the need is confirmed or not. Writing for the majority, Justice Scalia stated “An employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” The Court refused to place

the burden on the employee to directly raise the issue of religious accommodation. This is certainly a victory for the EEOC, which has suffered criticism and recent court defeats on many of its strategic plan items, and a significant decision of which employers must take note.

Positioning Your Aging Services Organization for Success in the New Era of Health Reform BY: REBECCA E. GWILT, ESQ. Nixon Law Group Healthcare Solutions Connection

Rebecca Nixon Law Group, LLC

As the health care payment landscape shifts from a focus on fee-for-service payments to value-based payment, major health care stakeholders are spending millions on innovative care delivery models and payment reforms. As part of this effort, hospitals, health systems, primary care providers and accountable care organizations (ACOs) are working to develop plans to integrate care delivery across the care continuum, with an eye toward impacting the overall health of their patient populations and the cost of care. Because they are generally limited to providing acute and/or primary care, these providers have an incentive to engage care partners across the care continuum who play a role in keeping their patients healthy. This has created unique opportunities for Gwilt aging services providers to negotiate lucrative partnerships. In an environment of decreased Medicaid payments and financially strapped customers, personal care providers should be discussing taking advantage of this alignment of incentives to create additional revenue streams for long term sustainability. The stated goal of the most recent health reforms is called “The Triple Aim.” That is—improving individual health care, improving the health of the population, and reducing per capita costs. Public and private payment incentives (and penalties) are tied to an organization’s ability to achieve the Triple Aim. Forming innovative partnerships is becoming increasingly important to hospitals, ACOs, SNFs, and primary care providers who are now being held responsible for the health of their patients despite the fact that, alone, they are only able to impact care when those patients are on-site. Your PCP business’s ability to contribute to each of these goals forms the foundation of its value proposition in the new era of health reform. As a key member in an individual’s care team, a PCP has the potential to contribute significantly to the health and well-being of clients, but also to help other providers meet their Triple Aim goals. Personal care providers are able to affect many different determinants of health in a way other health care practitioners cannot—in the homes and neighborhoods of their clients. We now know that social and physical determinants are at least as important in a person’s overall health as their clinical indications. Social determinants include things like availability of resources to meet daily needs, social supports and

interactions, transportation, and safety. Physical determinants include the individual’s natural and home/community environment. Personal care providers can directly ease some of the challenges related to some of these determinants by providing quality services, and can also indirectly address some of these determinants by playing a “coordination” role in introducing clients to non-PCP services. For instance, a PCP that can connect a client with local community-based supports such as transportation, meals on wheels, or housing supports, can play a huge role in extending their ability to support a client’s overall health. Specifically, PCP services have been shown to have an effect on reduction of hospital readmissions, a quality metric particularly important to large hospitals, health systems, and ACOs. And perhaps most importantly, PCP services are cost effective; average Medicaid spending on in-home is more than 40% less per person than institutional care. Last, because aging individuals generally prefer non-institutional care, PCP services can maintain and improve patient quality of life despite the challenges of aging. To boost your business’s value proposition, consider electing to work in partnership with primary care providers and acute and post-acute care institutions to assist in transitions of care, to create an environment conducive to maintenance of personal health and personal care, to engage clients to become more active in their health care, and to identify and support high risk patients. In addition, consider the needs to track key performance indicators and quality outcomes. Being able to demonstrate your value in real terms, with data as backup, will assist you in demonstrating your value proposition to key partners. In the integrated future of health care, those aging services providers that embrace their new role and who work across the care continuum to improve services and outcomes for their clients will thrive. For more information on the future of health care payment and care delivery for aging services providers, please contact Rebecca E. Gwilt, Esq. at [email protected] or at 757.846.4936. www.healthcaresolutionsconnection.com.

Interns – To Pay or Not to Pay? By: MARY ELIZABETH DAVIS, ESQUIRE Date: June 8, 2015 It is that time of year again -- graduate, college, and high school students are flooding your email inbox seeking real-world experience. Students volunteer to work without pay to get a better idea of a profession or an industry before taking on a lengthy and expensive course of study. You are not planning to hire this summer, but decide that you can permit a student to come in for several weeks, gain experience, and build her resume. But will this good deed go unpunished?

Mary Elizabeth Spotts Fain

Davis,

The United States Department of Labor (DOL) just might characterize your attempt at a good deed as a violation of the Fair Labor Standards Act (FLSA). The FLSA is the federal Esquire statute that governs minimum wage and overtime pay. Under this statute, all covered and non-exempt individuals must be paid at least minimum wage for all hours worked. Employees cannot waive their rights under the FLSA, therefore they cannot generally volunteer to work without compensation.

There are, however, situations under which individuals who participate in for-profit private sector internships or training programs may do so without compensation. According to the DOL, interns in the for-profit sector will most often be viewed as employed, unless all six factors of the test below are met: 1. The internship, even though it includes actual operation of the facilities of the employer, is similar training which would be given in an educational environment; 2. The internship experience is for the benefit of the intern; 3. The intern does not displace regular employees, but works under close supervision of existing staff; 4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; 5. The intern is not necessarily entitled to a job at the conclusion of the internship; and 6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. See DOL Fact Sheet #71. If all six factors are met, an employment relationship does not exist under the FLSA, and the minimum wage and overtime requirements do not apply. Unpaid intern suits have been on the rise in recent years. Former interns have sued large companies, including Fox Searchlight Pictures, Hearst Corporation, NBC Universal and CBS Corp., for unpaid wages. Some interns have won, and many companies have paid to settle disputes. Now is the perfect time to reexamine your internship programs. For example, consider implementing policies and practices geared toward training and supervising interns to create a program that qualifies under the test above. Avoid the mistakes made by many companies. Evaluate what you want from an intern before hiring. Put the appropriate procedures in place to avoid a wage and hour lawsuit.

Employee or Independent Contractor? DOL Focuses on Misclassification BY: MARY ELIZABETH DAVIS, ESQUIRE The United States Department of Labor (“DOL”) recently issued additional guidance on the proper classification of employees and independent contractors. The guidance makes clear that the DOL will view most workers as employees. Employers who are determined to have misclassified employees as independent contractors may be liable for:  Unpaid minimum wage  Unpaid overtime compensation  Health and other benefits  Denied medical leave  State and federal taxes  Unemployment insurance and claims

 Workers’ compensation insurance and claims To properly classify workers, employers should “determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor). The DOL directs employers to focus on the broad definition of “employ” under the Fair Labor Standards Act (FLSA) and the “economic realities” test developed by the courts. The DOL instructs that the application of the factors “should be guided by the overarching principle that the FLSA should be liberally construed to provide broad coverage for workers.” The guidance summarizes the factors of the economic realities test as: 1. The extent to which the worker's services are an integral part of the employer's business. If the worker performs the primary type of work that the employer performs for its customers, the factor weighs in favor of an employee relationship. If the worker provides a service to the employer’s business, the factor weighs in favor of an independent contractor relationship. 2. The worker's opportunities for profit and loss depending on his or her managerial skill. The worker who is paid by the hour with no risk of loss is more likely an employee than the worker who may suffer a loss of capital investment based on the manner in which he or she managed the project. 3. The extent of relative investment of the employer and the worker. The worker who performs services only for one company and uses company equipment is more likely an employee than a worker who has formed an LLC, uses his or her own equipment and supplies, and performs services for a number of customers. It is important to note that the DOL takes the position that simply providing tools does not create an independent contractor relationship if the worker’s investment is small when compared to the investment of the employer. 4. Whether the work performed requires special skills and initiative. The worker who provides only specialized skill is more likely an employee, while the worker who provides specialized skill, offers services to a number of customers, markets his or her services, and makes decisions about materials is more likely an independent contractor. 5. The permanency of the relationship. A longer work history weighs in favor of an employee relationship. A discrete project based engagement weighs in favor of an independent contractor relationship. 6. The degree of control exercised or retained by the employer. The worker who is subject to the company handbook, conduct rules, and specific direction for completing a project is likely an employee, while the worker who is tasked with a project and a deadline only is more likely an independent contractor. DOL cautions throughout the guidance that this control factor should not be given “an oversized role in the analysis.” On its website, the DOL characterizes misclassification as “one of the most serious problems facing affected workers, employers and the entire economy.” Government investigators and plaintiffs’ attorneys are focused on the issue, particularly with respect to industries employing low wage workers. The heat is on, and to avoid scrutiny, employers should focus on and review their classifications as well.