Employment Laws Also Apply to Your Household Caretakers
When you are an employment lawyer who represents management, most of your clients are businesses that have human resources departments. From time to time, however, I am cornered by friends at ball games or cocktail parties who have questions about the individual caretakers who assist them in managing their house, children, and garden, or, for example, the home health aides who might take care of their parents. Do the employment laws that we talk about in this blog apply to them?
For example, must you pay the person who cleans your house or mows your lawn a minimum wage? Except for casual baby-sitters — your neighbor’s teenager — most domestic workers are entitled to a minimum wage. What about overtime? Here again, the answer is generally yes, although generally “live-in” domestic workers — workers who live in your home seven nights a week or who spend at least five consecutive days or nights in your home — do not have to be paid overtime. Of course, in situations where a caretaker is contracted through an agency or other business, a different analysis applies.
There is also an exception to the minimum wage and overtime rules for certain companions for elderly or disabled persons, but it is a narrow exception and only applies if the companion does not work for an agency and spends 80% or more of a total week engaging the patient in social, physical, and mental activities. This does not include doing things like preparing food, bathing, or other household work, and does not apply if the worker performs medical-related tasks.
Although many don’t, domestic employers also have an obligation to complete I-9 forms for any worker who does more than sporadic work for the employer. While Immigration Customs and Enforcement has not been in the habit of “raiding” individual households, a person who knowingly employs an undocumented person to work in their home could face serious — even criminal — legal problems.
Finally, while I am not a tax lawyer and don’t give tax advice, don’t forget that domestic employers are obligated to pay (and withhold) Social Security and Medicare taxes for most household “employees” who earn more than $2,100 in a year, and pay federal unemployment taxes for any household employee who earns more than $1,000 in a quarter.
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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.