The simple answer is yes. Domestic employees specifically are covered by the Fair Labor Standards Act (FLSA) and have been since 1974. The FLSA establishes:
State laws are often more demanding than the FLSA, and the applicable law is the one that most benefits the worker.
Nannies and senior caregivers are non-exempt hourly workers under law and your employment agreement must specify the pay rate on a per hour basis.
Overtime compensation coverage hinges on whether the nanny or other household worker lives in (on the premise) or lives out (come-and-go).
You are required to pay a domestic employee who lives out overtime (for hours above 40 in a week **).
Overtime is one and one-half times the normal hourly rate.
The live in nanny must be paid for every hour she works but is not automatically entitled to the overtime differential. (There are 8 states that do not recognize the live-in exclusion, CA, MA, NY, NJ, MD, MN and OR.)
Hours worked include the following:
In general, hours worked includes all time that the employee is required to be at the employer’s home and all time that the employee is required to be ‘on call’ in the course of his/her duties.
A nanny or other household worker must be paid at least the minimum wage for every hour that they work. The FLSA stipulates that domestics (household workers) must be paid at least the Federal minimum wage. If your state imposes a minimum wage higher than the Federal minimum, the state amount is in effect*.
Minimum wage and nanny overtime laws are not determined by whether YOU agree to pay the nanny hourly or salary; they are determined by the type of work. The Fair Labor Standards Act (FLSA) specifically states that nannies and other household employees are covered by minimum wage and overtime laws.
If it is more convenient for you, a family can certainly agree to a weekly ‘salary.’ HWS strongly cautions the family to be sure the nanny’s hourly and overtime rates that underlie the ‘salary’ are specifically stated in a written work agreement. See our exclusive Hourly Rate Calculator for help.
It is important to note that the FLSA specifically calls out domestic employment (housekeepers, maids, nannies, etc.) in the statue as non-exempt employees, covered by the rules and protections of the FLSA. They are not independent contractors. This is not a grey area, subject to individual interpretation.
To quote the » FLSA’s Handy Reference Manual, “Domestic service workers such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters are covered if:
(1) their cash wages from one employer in calendar year 2020 are at least $2200. (Different amounts would be designated in other calendar years, pursuant to an adjustment provision in the Internal Revenue Code); or
(2) they work a total of more than 8 hours a week for one or more employers.”
* State Minimum Wages for Household Employment
** California household employees who live out and whose duties are not strictly limited to those of a “personal attendant” are entitled to the overtime differential for hours work over 8 in a day. So a schedule of 4 10-hour days is paid as 32 hours at the regular rate, and 8 hours at the overtime rate. In general, California has a number of rules and regulations that impose MORE duties and responsibilities on the household employer than Federal law does. We recommend you read EDD’s Household Employer’s Tax Guide for California-specific advice or phone HomeWork Solutions at 800-626-4829 and consult with a household payroll specialist.
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