If you employ a nanny, you have obligations under federal, state, and local employment laws. That includes paying your nanny overtime as well as complying with workers’ compensation insurance, paid time off and other rules. Failing to abide by these laws can result in a significant liability.
Why Are Nannies Owed Overtime?
Under federal, state, and New York City law, nannies are considered non-exempt employees. That means generally, nannies must be paid at least minimum wage and overtime if they exceed a certain number of hours per week. There are, however, distinctions between live-in and non-live-in nannies.
The federal Fair Labor Standards Act (FLSA) states that domestic workers must be paid at least minimum wage for all hours worked. The FLSA defines domestic service workers as people who provide household services in or about a private home. It is important to note that the FLSA also distinguishes domestic service workers from “companionship services,” which is the caring of an elderly person or a person with an illness, injury or disability. This article focuses on domestic service workers (e.g., nannies), and does not address companionship services under the FLSA. Domestic service workers may either live inside or outside of an employer’s private home. A nanny who lives outside the employer’s home must be paid overtime if they work more than 40 hours in the workweek. However, live-in nannies may be exempt from overtime pay.
In New York State and New York City, you must pay your nanny at least minimum wage up to 40 hours per week if they live outside your home or 44 hours per week if they live in your home. (Note that the minimum wage can change as the federal, state, and local legislative bodies or agencies pass laws.) It is important to keep up to date, understand, and comply with federal, state, and local laws.
If they exceed the 40/44 hours in a given calendar week, they are entitled to overtime pay.
The overtime rate under federal, state and city law is 1.5 times the regular rate of pay. Employers who fail to comply must pay back wages and may receive significant fines.
How Is Overtime Pay Calculated?
You must keep accurate records of all hours your nanny works. Overtime hours are calculated weekly. Any hours worked over 40 hours (or 44 for live-in nannies) in a single workweek is subject to overtime. The nanny’s normal hourly pay rate must be multiplied by 1.5 to determine the overtime pay rate. That rate is then multiplied by the number of hours over 40/44 to calculate how much you must pay your nanny. Hourly pay must be at least minimum wage, but if you choose to pay your nanny more than minimum wage, overtime must be calculated at whatever hourly rate they make.
Note that certain periods can be excluded from time worked including bona fide meal, sleep or other free periods. Nannies who make exactly minimum wage may be entitled to an additional hour for any day in which they work more than 10 hours (from the start of the day to the end of the day), including if they work nonconsecutive hours on the same day.
What Other Employment Obligations Are Nannies Owed?
As employees, nannies are entitled to other legal rights. You must comply with various rules, including the following:
- Written notices. In New York, at the time of hire, you must provide your nanny with a written notice that states the regular rate of pay, overtime rate and frequency of pay. In addition, you must notify your nanny of his or her rights under wage and hour, discrimination, sexual harassment, sick leave and other laws by providing various physical notices mandated by the government.
- Workers’ compensation insurance. You must pay for workers’ compensation insurance for nannies who work 40 or more hours per week and give them notice of your carrier.
- Disability insurance. Such insurance must also be purchased for nannies who work 40 or more hours per week.
- Paid family leave. If your nanny works 40 or more hours per week, you must purchase insurance coverage to provide paid family leave in New York.
- Paid safe and sick leave. You must give your nanny five paid sick days off. These days are accrued per hour of work over the course of the year. In New York City, if your nanny has worked for you for at least one year and worked more than 80 hours a calendar year, he or she is also entitled to two days of paid safe and sick leave to care for themselves or family members or take safety measures in cases of domestic violence, unwanted sexual contact, stalking or human trafficking. This is in addition to paid-time-off requirements.
- Paid time off. New York requires that you give your nanny at least three paid days off after one year of work.
- Sexual harassment prevention. You must provide your nanny with a written sexual harassment prevention policy and training that meets specific legal requirements.
Those who employ nannies should understand their legal obligations and potential liabilities, and nannies should understand their rights under the law. In either case, an experienced attorney can assist you in navigating your legal obligations and rights.
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