By: Edwin Cruz
Must I pay my housekeeper minimum wage and overtime pay? Yes! Recently, an increasing number of domestic service employees (such as nannies and housekeepers) have filed wage and hour claims against their employers in South Florida. Employers who have been sued in these cases are often caught off-guard because they don’t expect to be sued by someone who works inside their homes. What they don’t know is that the Fair Labor Standards Act (“FLSA”) and Florida’s Minimum Wage Act, Fla. Stat. § 448.110, impose duties and responsibilities upon persons who employ nannies, housekeepers and other domestic service employees.
And what they don’t know can hurt them: the lack of familiarity with the legal obligations imposed on employers often makes defending those employers very difficult in unpaid wage cases brought by their domestic employees because these employers are not in the habit of tracking the time worked by their domestic employees, and often do not pay time and a half for overtime.
With a few exceptions, employers are required to pay domestic service employees (including babysitters, cooks, waiters, maids, housekeepers, nannies, janitors, caretakers, handymen, gardeners, family chauffeurs, etc.) at least minimum wage for all hours worked. Moreover, they must be paid time-and-a-half for all hours worked over 40 in a workweek.
A common problem encountered when defending these cases is that individuals who employ nannies, housekeepers or the like do not track their employee’s time because they do not consider themselves to be employers. Because the FLSA applies to anyone who employs one or more domestic service employees, the individual, as the employer, is obligated to track the employee’s work hours, and must ensure compliance with minimum wage and overtime pay laws.
All hours worked by domestic service employees should be tracked, either by time-tracking equipment (such as a time clock or similar device) or on weekly time sheets. At the end of each week, the employee should sign the time record and attest to its accuracy, and the employer should retain the time records for three years. The employer must assure that the employee is paid at least the minimum wage for all hours worked. In Florida, the minimum wage for 2015 is $ 8.05, though this rate is subject to adjustment each year.
Further, the employer must make sure that the employee receives one and a half times his or her regular hourly rate for all hours over 40 worked in a week. It is important to note that if an employee is paid on a bi-weekly schedule, the overtime calculation must be performed for each week. Thus, if your housekeeper works 50 hours in week 1, and 30 hours in week 2, he or she is entitled to 70 hours of regular pay and 10 hours of overtime pay, rather than 80 hours of regular pay for the period.
In sum, people hired on a regular basis to help run a household are employees subject to the FLSA who are entitled to overtime when they work more than 40 hours in a week. Importantly, their hours worked should be monitored and recorded, just as it would be tracked by a business employer.
If you have any questions, please feel free to contact Elizabeth Pryor Johnson or Edwin Cruz at 305-789-9200 to speak about this or any other labor or employment issue you may have.
This alert is intended to inform clients and friends of Fowler White Burnett about legal trends in South Florida. Nothing in this article should be construed as legal advice and should not be relied on by any reader as legal advice or the basis of any action.
1 Note that pursuant to 29 U.S.C. § 213 (b) (21), you do not need to pay overtime if your housekeeper, nanny, or other domestic service employee resides in your home, but minimum wage laws do apply.
2 For example, a babysitter hired occasionally may be exempt from minimum wage and overtime laws, while a regularly scheduled babysitter would likely not be exempt. The exemption contained in 29 U.S.C. § 213 (a)(15) provides that “any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves” would not be subject to the minimum wage or overtime requirements of the FLSA.