Joe Markley: Noncompete clauses can help protect home care

Joe Markley

Joe Markley

Catherine Avalone / Hearst Connecticut Media

I’m afraid that the recent article on noncompete contracts gave only one side of the story. Beginning with the headline — “Connecticut moves to help low-paid workers hurt by noncompete rules” — the article did little to suggest that such agreements might serve a legitimate purpose.

Just a single quote from public hearing testimony is left to make the case for non-solicitation agreements, yet such contracts are nearly universal in many industries, including home care, and with good reason. Before the legislature acts to ban such agreements, lawmakers and the public ought to understand what these agreements do and why they matter.

In the home care field, most agencies permit their caregivers to work for other companies and to have clients of their own. They do not seek to limit opportunity, but to protect what they have built up over many years, and to maintain accountability in the delivery of care.

Standard, lawful and limited non-solicitation agreements require only that employees refrain from converting people the agency has matched them with into private clients, or from taking those clients with them to a different home care company. Without this narrow limitation, home care agencies are at risk of losing their clients to the very people they hired and trained to care for them.

Caregiving agencies provide a vital service to clients by performing comprehensive background checks on employees, matching clients with the caregivers most appropriate for their needs, and making sure — even on short notice — that clients are still served if a regular caregiver is not available.

This agency model for home care also provides employees with essential protections, including workers’ compensation, unemployment benefits and medical insurance, as well as keeping caregivers employed elsewhere when a particular client no longer requires service. It is widely acknowledged that the agency model is safest and most stable for all parties involved, and we should be wary of changes that might undermine it.

Weakening home care agencies would hurt both clients and caregivers. It would also threaten the availability of a low-cost service essential to the Connecticut Home Care Program for Elders, which has saved taxpayers millions of dollars each year by keeping seniors in their homes and avoiding costly institutional care. Medicaid consumers have always had the choice of a home care agency; prohibiting non-solicitation agreements will begin the transformation of these agencies into referral services, eliminating a proven care option for consumers in our state.

Reasonable and limited non-compete agreements have been upheld in court many times. The public interest has been a prime consideration in judicial review of non-compete agreements; that interest is best served by preserving an effective, efficient and privately run home care system. Permitting a very specific and strictly limited exclusivity clause makes agency system for home care — and the affordable quality care it alone can provide — possible in Connecticut.

Joe Markley is communications liaison for Companions & Homemakers. He is a former state senator and was the 2018 Republican nomimee for lieutenant governor.