Thursday, March 5, 2009

Eleven Nanny and Domestic Worker Rights

Nanny and Domestic Worker Rights

In a report prepared for the U.N. Human Rights Committee entitled, "Domestic Workers’ Rights in the United States," violations against domestic workers are noted.

The report states, "Employed in private homes to perform household tasks that historically have been assigned a diminished value, domestic workers frequently face exploitation and abuse, a problem further exacerbated by their association with particular groups (women, minorities, and migrants) who suffer multiple forms of discrimination."

The report explains, "Although U.S. laws should protect them, domestic workers find that they are often excluded from legal protections or that the laws are not enforced. This reprehensible abuse of domestic workers violates the International Covenant on Civil and Political Rights."

Kathy Webb of Home/Work Solutions at 4NannyTaxes.com explains, "Labor law, tax law, and the penal code, both at a Federal and state level, provide basic workplace protections and rights to all nannies and domestic workers. It does not matter if you are a U.S. citizen, an alien with a work permit, or an alien who does not have the legal right to work in the United States -- these laws [protect] everyone. Nannies, housekeepers, and maids are typically the employee of the family retaining their services."

4NannyTaxes.com lists "Ten Employment Rights of a Nanny or Domestic Worker" at Below we list the ten rights from 4nannytaxes.com and we have added an eleventh right of a nanny.

Your rights include:
1. Pay for all hours worked:
The nanny or domestic is protected by the Federal Fair Labor Standards Act (FLSA). Nannies and domestics are to be paid on an hourly basis and must be paid for all hours worked.

2. Minimum wage: The Federal government establishes a national minimum wage ($6.55 per hour as of 7/24/2008). Many states have established minimum wages that exceed the Federal minimum. The nanny or other domestic is entitled to be paid no less than the greater of the state or Federal minimum. See page 9 for minimum wage rates are for each state.

3. Overtime pay: A nanny or domestic who does not live with the employer is entitled to be paid an overtime differential for hours worked in excess of 40 in a week. The overtime differential is calculated as 1.5 times the regular hourly rate. Maryland and New York extend the overtime differential to nannies and domestics who live with the employer, with the overtime rate applying after 40 hours in Maryland and 44 hours in New York.

4. Annual wage and tax statements (Form W-2): The nanny or domestic employer has obligations for wage and payroll tax reporting established by Federal Law. IRS Publication 926 details these requirements. A nanny is NOT an independent contractor, and is NOT to be provided a Form 1099 unless wages do not meet $1700 (2009) in the year.

5. Proper payroll deductions: Your employer may make certain tax deductions from your regular pay check. Your employer may withhold the proper social security and medicare deductions. Other deductions such as health insurance premiums, retirement contributions, or reimbursement for long distance telephone charges that both benefit you and that you agree to in writing.

6. Regular Payroll Payments: State law determines the maximum number of days between payroll dates and the maximum delay an employer may place on your periodic payroll. A best practice is to agree to a payroll frequency (weekly, bi-weekly typically) and a pay date in writing. Employers may not place additional delays (lag periods) on your payroll due to employer's business travel, vacation, etc. The employer is responsible to maintain accurate and contemporaneous payroll records that includes the dates and hours you worked for a period of three-years. It is advised that the nanny or domestic also maintain similar work records that are kept in a safe place.

7. Payment of medical bills and lost wages due to a work related injury: This is known as Workers Compensation, and the rules surrounding who must have a policy of insurance and the covered items is established by individual state insurance commissions. In most cases, you must file a claim with your state's Workers Compensation Board to qualify for payments for medical expenses and compensation for lost wages. If you are injured at work, and your employer (or the employer's insurance company) will not pay these expenses, you should seek legal advice.

8. A Workplace Free From Physical and/or Sexual Abuse: It is illegal for an employer to physically abuse (slapping, beating, etc) a worker. It is illegal for the employer to demand physical contact or demand sex from the nanny or domestic worker. There are both Federal and state laws that protect workers from this type of abuse.
Consult a lawyer or legal aid society if you have been physically or sexually abused by your employer.

9. Document retention: Your employer may not keep identity documents such as your passport, Social Security Card, Driver's License, or Work Permit from you. Passport deprivation is illegal. Deprivation of travel documents is unlawful and contributes to the isolation and enforced confinement of domestic workers and their inability to escape abusive employment conditions. You have a right to a copy of any work agreement or contract that you sign with your employer. Remember, the employer is responsible to maintain accurate and contemporaneous payroll records that includes the dates and hours you worked for a period of three-years.

10. Non-retaliation. Your employer may not turn you in for immigration violation as retaliation for a workplace grievance such as a formal claim for unpaid wages, a complaint of criminal misconduct such as physical abuse, or a claim for workers compensation benefits. The Department of Homeland Security's Immigration & Customs Enforcement Agency (ICE) has written rules that prohibit their interference in these matters. See the ICE's Policy for Labor Disputes courtesy of the National Employment Law Project (NELP) publication "Rights Begin At Home." Taking the time at the beginning of the employment relationship to define all aspects of the employment relationship in a written work agreement benefits both the employer and employee, and serves as a blue print that helps document the employer's specific requirements and expectations as well as the financial agreements made with the nanny or domestic. Additionally, by addressing all 'issues' up front, the employer avoids misunderstandings, assumptions, disappointment and conflict in the future. Experts agree — a good nanny and family work agreement is an important foundation for the good relationship you hope to have with this person.

11. Invasion of privacy: Domestic workers often have their rooms searched, their mail opened, and are not allowed to make private phone calls. In the report prepared for the U.N. Human Rights Committee, "Domestic Workers’ Rights in the United States," violations against domestic workers are noted. The report states that "Article 17 protects the domestic worker from ‘arbitrary or unlawful interference with her privacy, family, home or correspondence.’ Due to the nature of her work, the domestic worker is particularly vulnerable to privacy invasions. Employers have been documented to interfere with workers’ rights in a number of different ways, including monitoring phone conversations, restricting access to others, opening mail, and searching the workers’ private effects and rooms. Some employers have interfered with domestic workers’ families by threatening or harassing the workers’ families, often in an attempt to get them to persuade the worker to drop a complaint."

Margaret Huang, "Domestic Workers’ Rights in the United States" Global Rights, 1200 18th Street, NW Suite 602, Washington, DC 20036 U.S.A. Phone: 1-202-822-4600 Email: margareth@ globalrights.org

Kathy Webb, "Ten Employment Rights of a Nanny or Domestic Worker" 4nannytaxes.com, Home/Work Solutions, Inc., 2 Pidgeon Hill Dr. #550, Sterling, VA 20165

5 comments:

Anonymous said...

Previously there was a heated discussion about this topic on this blog. I posted this little quote that you listed in this article #11 about specting nanny privacy.

http://bestnannynewsletter.blogspot.com/2009_01_04_archive.html

I am really glad you brought this up again because I understand both sides of the issue. Obviously a parent will protect their house and children. Obviously if the parent thinks they smell a nanny smoking pot in their room or there is a gunshot and the parent opens the door and confronts the nanny or see what happened no judge or court would say they should not have entered the room to stop the illegal activity. If the nanny is fired over a small infraction the parent finds from snooping through the employee's belongings I think the nanny would have a right to sue for unemployment benefits. Respecting privacy protects the parents' also.

In the typical household that hires trustworthy nannies, if the parent invades the nanny's privacy by entering their room or bathroom uninvited, opens or reads the nanny's mail, or goes through their belongings the nanny has a right to object.

There is a fine line and the nanny the parent hires is an adult not their child. There is a much much much higher expectation of privacy for the employee than a child. So it is appropriate to educate parents of the rights of employees. Just because the purse, bedroom, or dresser is the parent's house doesn't mean they are just allowed to browse through the employee's belongings.

Megan Thompson, Nanny of Multiples, Cambridge, MA

Anonymous said...

This is important info to know that the nanny agencies I have worked with never shared with with me, so thanks for publishing it. I think the average subscriber to this newsletter are the "cream of the crop" who are probably not being exploited. It is the immmigrant who thinks she can not disagree with her employer or stand up for herself because she thinks that she might be risking deportation that is most at risk and needs to know that she still has rights even if she isn't a citizen yet. That is what I have seen locally. It is a shame that wonderful women I work along who deserve the same rate I get and benefits do NOT want to risk losing their jobs and settle for much less.

I will definitely reccomend your newsletter and this site to my nanny peers.

Melinda Burrows
Live-in Nanny
Morris Plains, NJ

Anonymous said...

This is so important for nannies to know. We should make brochures of this information for agencies to pass out to their clients (families) and nannies. Thanks for sharing such great info, as always.

Patti Carlsson
Nanny and Newborn Specialist
Haverford PA

conner holmes said...

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Maids R Us said...

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