What Do You Mean I Have To Pay My Nanny Overtime?!

by Franczek Radelet P.C.

As a working mom, I am lucky to have a husband who is a stay-at-home parent.  Rarely do I have to worry about being late to work because I have to drop my child off at school, or leaving work early to take my child to an after-school activity or doctor’s appointment.  However, many of my co-workers, friends and neighbors employ nannies to watch their children while both parents work all day.  Most of the nannies I know do not live at the family’s house, but they can work long and varied hours.  Nannies are generally paid hourly or are given a weekly salary intended to cover all hours worked.  Recently, I have discovered that many of those who employ nannies do not realize that their nannies are entitled to minimum wage and overtime protection under the FLSA just like any other non-exempt employee.

While the FLSA does not use the modern term “nanny,” the regulations specifically provide that domestic services employees (housekeepers, maids, governesses, etc.) are non-exempt employees covered by the FLSA.  This definition also includes babysitters employed other than on a casual basis (i.e., a few hours or less a week).  Nannies must be paid at least minimum wage for all hours worked, and overtime compensation coverage depends on whether the nanny lives on the premises or lives outside the home.  A “live-in” nanny must receive at least minimum wage for each hour worked but need not receive overtime for hours worked over 40 in a work week.  On the other hand, a nanny who lives outside the home must receive at least the minimum wage for all hours worked and be paid overtime (time-and-a-half) for those hours worked over 40 in a workweek.  It does not matter if the nanny is paid an hourly wage or salary – if the nanny is entitled to overtime, his/her wage will need to be converted to an hourly rate to determine the proper overtime compensation.

In general, hours worked includes all time the nanny is required to be at the employer’s home, the time spent away from the home during which the nanny is performing services, and all time that the nanny is required to be “on call” in the course of his/her duties.  “Down time” will not be considered working time if the nanny is completely relieved from duty and the period is long enough for him or her to engage in personal activities.  However, it is important to note that if the nanny is required to remain on the premises during meal time or remains “on call” for school emergencies, this would likely be considered “hours worked” for overtime purposes.

The rules governing compensation of domestic services employees can be complicated, particularly for those employers who are not familiar with the FLSA requirements.  The proper compensation of domestic service employees has piqued the interest of the Department of Labor, as well as the employees themselves.  These days, employees are more knowledgeable about their right to minimum wage and overtime.  So if you employ a nanny, it might be beneficial to review your payment records to ensure that he/she is being properly compensated.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

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