The budget document now headed to the governor’s desk involves much more than the dollars and cents of state spending.  For some years now, both the budget and the bills implementing it contain sections that dictate policy, not expenditures.  It’s a dangerous practice, which effectively forces legislators to approve proposals that wouldn’t pass on their own merits, often without a public hearing or proper scrutiny.

Section 305 of this year’s budget is a sad example of this bad practice.  A dramatic policy change with no budgetary impact, Section 305 forbids any contract clause restricting employment in any way — a prohibition unique to Connecticut, and applied only to the homecare and home health industries.

There may be good reasons to limit non-compete clauses, but in the homecare field, agencies already permit their caregivers to work for other companies simultaneously, and to have clients of their own.  Agencies do not wish to limit opportunity for their employees, but to protect the businesses they have built up over many years, and to maintain accountability in the delivery of care.  To that end, they use non-solicitation agreements, which Section 305 would forbid.

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 competing homecare company.  Without this narrow limitation, homecare agencies are at risk of losing their clients to the very people they hired and trained to care for them.

Weakening homecare 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 homecare 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.

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.  Agencies create good jobs in care management, customer service, and administrative support.

The agency I work for, Companions & Homemakers, employs over 120 people in our 12 offices plus approximately 3,000 caregivers and contracts with vendors throughout the state.  We are the largest woman-owned business in Hartford County, part of an industry notable for the opportunities it provides to people seeking jobs which offer variety, flexibility, reliable employment and benefits, and the deep satisfaction of helping those in need.

It is widely acknowledged that the agency model is safest and most stable for all parties involved; we should be wary of changes that might undermine it.  It’s hard to say just what the impact of Section 305 will be if signed into law, since no state has ever imposed such a prohibition — a fact that in itself should make us cautious.

As was pointed out by a respected Connecticut employment law commentator in a recent article on Section 305, “Hastily added provisions like this do a disservice to everyone. And it’ll be left to the lawyers and courts to sort out the potential mess arising from a provision slipped into the budget at the last minute.”

All too often, we don’t appreciate what we have until we lose it.  The administration should consider the steep potential downside of an unnecessary and unprecedented change in the law directed at one particular industry.

The governor has the power to veto Section 305 without affecting the rest of the budget document; and respectfully he should to do so and work with stakeholders to craft an alternative that preserves vital state industries while addressing the need to ensure opportunity and autonomy for home-care and home health care workers.

A former State Senator and chair of the Human Services committee, Joe Markley is Communications Liaison for Companions & Homemakers of Farmington, Connecticut.

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