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The Special Rules For Domestic Workers Family Employers Should Know

A former nanny for celebrity couple, Tamar Braxton and Vincent Herbert, sued them for failing to pay her for all hours worked. She allegedly worked to provide all of their son's physical, mental, social, and emotional needs during Braxton's 2014 tour.

The nanny filed a claim for the unpaid wages with the California Division of Labor Standards Enforcement, which ordered the couple to pay her $213,000. The nanny filed a lien on the couple's home for the unpaid wages. She received a check for the total award amount after the couple sold their home for $10 million. Ricki Mathers "Nanny That Sued Tamar Braxton And Vincent Herbert Finally Gets Her Pay After The Estranged Exes Mansion Sells For Millions Below Asking Price" (Aug. 18, 2018).

Commentary and Checklist

Eight states and Seattle have passed legislation protecting domestic workers' rights. However, all family employers must pay domestic workers fairly and protect them from harassment and discrimination, no matter which state you live in.

Family employers may fail to pay domestic workers for all hours worked because they are ignorant about applicable laws or do not accurately track hours. Consult a skilled wage and hour attorney before designating a staff member as overtime exempt.

Have all staff, including live-in domestic workers, clock in before they start their work duties and clock out when they are finished. Do not ask domestic workers to perform job duties during lunch, breaks, or other times they are "off-the-clock."

Remember to pay domestic workers for time that they are "engaged to wait." For example, if a staff person is required to meet a contractor at 10:00 a.m., and the contractor does not arrive until noon, you must still pay the staff person for the two hours between 10:00 a.m. and noon.

If domestic workers receive room and board as part of their pay, keep a record of the costs of providing lodging and use that to calculate its value. Lodging costs must be reasonable.

Here are some additional tips for family employers who employ live-in domestic staff:

  • Domestic service workers are those who perform household work in a private home.
  • They include companions, babysitters, cooks, waiters, maids, housekeepers, nannies, nurses, caretakers, handymen, gardeners, home health aides, personal care aides, and family chauffeurs.
  • Live-in domestic service workers may be exempt from the FLSA's overtime requirements. Domestic workers that do not live with the employer must receive overtime pay for all hours worked over 40 per week.
  • Other FLSA regulations do apply to live-in domestic workers. They must receive federal or state minimum wage (whichever is higher) for all hours worked.
  • To be considered a "live-in" worker, the staff member must reside on the employer's premises permanently, or for an extended period of time (five days/nights per week).
  • Live-in staff does not include those who only work for the employer for a few weeks, or work 24 hour shifts at the home.
  • Live-in staff does not have to be paid for time they are at the home but free of all work duties—i.e., when eating, sleeping, or performing other personal activities.
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