Domestic Employees and Overtime Disputes

Aug 07

It is very easy to overlook the fact that your live-out nanny who comes in 5 days a week before you go to work and leaves when you get home is a non-exempt employee under the Fair Labor Standards Act (FLSA). This means that live-out domestic workers are entitled to overtime pay at 1.5 times the regular rate. This can lead to overtime disputes that can get pretty ugly pretty fast unless you cover your legal bases pretty thoroughly.

All domestic workers are non-exempt employees under the FLSA, and in New York, even live-in domestic employees are entitled to time-and-a-half in overtime when they work beyond 40 hours a week. In essence, you can have your domestic staff working extended hours; just be ready to fork out the cash. If you don’t, you could be dealing with a New York City overtime lawyer in a, well, New York minute.

The rule of thumb to avoiding overtime disputes with domestic employees is to have a clear and FLSA compliant work agreement. Employers typically quote a weekly salary without specifying how many work hours it encompasses and what the hourly rate will be. In the absence of specifics, it is presumed that the weekly salary is for a 40-hour workweek, and any hours worked over and above that will be paid in addition to the weekly salary.

The work agreement should include:

  • An hourly rate
  • Work hours
  • Weekly rate

If you include all these details, the weekly rate will include all hours worked within that week, including overtime. For example, if a live-out nanny is paid $650 for a 5-day workweek at 10 hours a day (50 hours a week) this works out to an hourly rate of $11.82. At the regular rate x 40 hours + [(regular rate * 1.5) x 10 hours)], it comes out to $650.53 a week.

If you are a domestic employee in New York with no work agreement and regularly work over 40 hours a week without being paid overtime, you have a possible case for an overtime dispute. You can use this website to record your hours of work which your New York overtime lawyer can use as evidence.

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