Nanny Overtime: Pay Up Or Get Sued
Oh overtime. How I love you and hate you at the same time. I love you because I work hard and I deserve it. I hate you because so many parents ignore their LEGAL obligation to pay it, so I'm stuck deciding whether or not to risk my job by bringing it up or quitting my job because after bringing it up, they still refuse to pay it. And then I'm stuck deciding if I should sue the parents who did it to me -- which would then forever tarnish the relationship, and I love the kids so much. But it's money I deserve. Money I worked hard for. And more than that -- it's about justice. If a family did it to me (someone who very vocally laid out the laws to them and provided them with sources on nanny overtime), they surely are continuing to do it to the nanny after me and will continue doing it to all of their future nannies -- again and again -- until someone says ENOUGH.
So this is my public ENOUGH. I'm going to break down overtime very clearly so any nanny who is being illegally cheated out of overtime will have the information and encouragement to speak to their employers about it. I'm also breaking it down so any parents who employ a nanny will adhere to these laws if they aren't already. Don't think I'm being harsh -- it's the law -- I'm just the messenger...
A nanny is a non-exempt hourly employee.The Fair Labor Standards Act (FLSA) states that all nannies must be paid for every hour worked and that live-out nannies must also be paid overtime (time and a half) for anything over 40 hours in a 7 day period. A nanny CANNOT be paid salary. If you want to list your nanny as "salary" you should break down their hourly rate in the contract. For example, if your contract states that your nanny gets paid $40k for 50 hours/week, you have to then break down the hourly rate. In this scenario it would come out to a regular rate of $13.98/hour for the first 40 hours and then an overtime rate of $20.97 for the additional 10 hours. If you write a contract without breaking down the hourly rate it is incorrect. If you fail to pay your nanny overtime, your nanny can come back at you and sue you.
Many families choose to write contracts this way because it's easier and because makes it seem like the nanny is getting paid a higher (more fair) hourly rate. In this scenario, the parents would have simply divided the $40k by 52 weeks and told the nanny that they are making $15.38/hour which is the going rate in the area, when in reality, the nanny is actually only making $13.98/hour if overtime is included in the $40k. And parents, you can't simply claim that as your defense if your nanny does pursue legal action. You can't say "Well the $40k included overtime". The Department of Labor will look into it and you will likely be liable for not paying overtime since you didn't document the hourly breakdown. The FLSA specifically labels household employees as non-exempt hourly employees -- it's not a gray area subject to interpretation.
Now that we have the legalities out of the way, I have to ask why parents even try to cheat the system in the first place? Is it really worth it? Even if your nanny is not the type to speak up, do you not feel bad for doing this to them? Nannies work hard. Really hard. Any parent should know this. It is widely accepted that parenting is the most difficult job there is, yet somehow nannying isn't? I'm not trying to equate being a nanny to being a parent -- I understand nannies get to leave at the end of the day so please don't misinterpret. But, when a nanny is working and taking care of your kids, they are an extension of you -- they are being the parent for those 10 hours you are away. It is hard work. If you're going to pinch pennies, childcare shouldn't be the place you do it. If your nanny addresses overtime with you, give it to them! And don't pull the "suddenly taking away their paid vacation time since you're now giving them overtime" thing. That's petty and wrong. How would you feel if your boss did that to you?
Let's also not forget that taxing your nanny is often a benefit to you. Many parents are eligible for a tax credit because of it. It's interesting to me that parents are all on board with taxing because it's the "legal" thing to do, yet when it comes to overtime, they ignore the law. It makes me think that it's not really about what's legal, it's about what benefits them. A tax credit benefits them, but overtime doesn't -- so they simply disregard it and figure they'll never get in trouble for it.
Finally, nannies -- please hear what I'm saying. You are legally entitled to overtime. If you are a live-out nanny (live-in nannies have different overtime laws that vary by state) who is being taxed and you work over 40 hours in a 7 day period, your employer HAS to pay you overtime. A family who isn't paying you overtime is taking advantage of you. If you are too afraid to bring it up to them in fear of losing your job, I feel for you and I've been there. I want to encourage you to stand up for yourself. If you're not a part of the solution, you're a part of the problem. Nannies need to speak up and start demanding overtime or seek legal action if it's already happened to them. Parents are only continuing to do it because we allow them to. Plus, when speaking up, it might be a simple case of the parents honestly not knowing the law and then they happily fix the mistake. If it's not an honest mistake and they are intentionally breaking the law, you deserve so much more than a family who refuses to pay you overtime for those hard earned hours. Plus, if we are getting technical, I feel like it would be another lawsuit waiting to happen if parents did fire a nanny for "whistleblowing". It's called whistleblower retaliation and employers can get in trouble for firing an employee due to the employee simply reporting or addressing unlawful practices.
It's tough as nannies because we don't have an HR department looking out for us like other jobs. We have to be our own advocates and that is a very heavy burden -- especially when we don't know exactly what our rights are, and our livelihood rests in the hands of those taking advantage of us. Please use the resources in this article and the links provided to have a sit down with your employers and professionally, yet firmly, demand overtime. And if you're in a situation where you think you might want to pursue legal action, contact your local Department of Labor and they should be able to help you. Lastly, do not feel guilty for addressing overtime with them or suing them if that's what you choose to do. It's money you deserve and are legally entitled to -- they are the ones breaking the law, not you.