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New York State Workers Compensation Penalty or Other Employment Law Claims Regarding Using a Nanny

Thumbnail image for Nanny.From.IStock.Photo.jpgHousehold employers of a nanny or home health aide are generally not familiar with New York State Labor Laws but, in the State’s eyes, they are responsible for compliance. Every employer – household and otherwise – must be aware of their responsibilities and obligations so it can protect itself from a government notice or employee complaint. Our Award Winning Lead Employment Lawyer has counseled many household employers regarding the hiring, working relationship and termination of employment for a nanny or home health aide and saved them money and time. Contact our office for a confidential consultation at (800) 893-9645 to learn your rights, options and how to defend yourself in a claim. Common claims concern government penalties and audits, payroll tax bills, and misclassification of workers as independent contractors and improper payment off the books. This blog post is the limited to certain issues under the New York State Domestic Workers Bill of Rights (“Bill of Rights”) and is a part of a series. You should speak with an experienced employment law attorney for advice regarding your specific situation.

In general, the Bill of Rights protects individuals who work in another person’s home (i) caring for children or another person or (ii) performing domestic responsibilities (cleaning, cooking, gardening, or repairs). The Bill of Rights does not apply to workers who do ocassional baby sitting or yard work. The Bill of Rights does not apply to individuals who work for an agency but other state labor laws may apply to those workers.

General Employer Obligations Under the Bill of Rights

1. An employer must keep accurate and detailed payroll and time records showing the hours worked, amount of gross wages, breakdown of any deductions. This is critical and a common mistake made by many employers. If you have not been doing this, start doing so immediately. An employer must provide an itemization of deductions to employees.

2. An employer must pay its employees atleast minimum wage (as of today $8.75 per hour and $9.00 per hour as of December 31, 2015) on a weekly basis. Some employers mistakenly believe that an agreement to pay a worker an agreed-upon lower wage is legal – that is not true. A worker can not contract away his or her rights to minimum wage.

3. An employer must pay overtime wages at the rate of 1.5 times the basic rate of pay after 40 hours of work in a calendar work week. If an employee lives in the employer’s home, it must be paid overtime after 44 hours of work in a week. For example, if an employee’s basic rate of pay is $10/per hour and he works 60 hours in work week (and is not a live-in worker) – he must be paid the first forty hours at the $10 rate and the additional twenty hours at an overtime rate of $15 per hour.

4. An employer must give one full day of rest per week. However, an employee can work on this day if he or she is paid at an overtime rate.

5. An employer must give three days of paid off after one year of work service.

6. An employer must make payroll deductions (e.g., income tax withholdings) but it cannot make deductions for any other reason. For example, an employer cannot deduct monies for broken dishes or other damage absent an express written authorization.

7. An employee is protected under the New York State Human Rights Law from certain types of harassment (e.g. sexual harassment) and workplace discrimination.

8. In general, employers must maintain workers compensation insurance coverage for its employees including certain household employers.

Non-compliance can lead to government investigation and private lawsuits filed by employees. It is a best practice to act pro-actively and get into compliance before any issues arise. If you have any specific questions about your situation, contact our NY Employment Lawyer for advice and counsel.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced attorney in your state or jurisdiction.