| Subject: Re: Nanny: vaca pay -- |
Author:
Tonya
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Date Posted: 18:55:32 07/27/04 Tue
Susan,
First I want to say that I really admire that you are seeking information on this rather than just stonewalling. That is an indicator that this problem can be tackled.
A lot of this depends on whether or not your nanny is live-in or live-out. If she is a live-out nanny, then yes, she is entitled to overtime pay for anything worked beyond 40 hours per week by Federal Law (Federal Fair Labor Standards Act). If you have agreed to a salary, whether you choose to use her services at any given time is irrelevent. You have agreed to a salary, and she is entitled to it. This is assuming she is a live-out nanny. If she is live-in, the laws are a bit different regarding overtime and are more dependent on your state domestic employment laws. However, it is NOT common for a nanny to "bank" and make-up hours except in very limited amounts. Theoretically, you could give her 6 months a year off and expect her to work the same amount of overtime each year with such an agreement, and that would be ridiculous. Most families/nannies who have this kind of agreement (and most professional nannies will not work with this kind of agreement) limit it to a max of 2 weeks (80-100 hours) total per year. And if you choose to take off more time than that, it is your choice, but she still gets paid. I know this sounds tough, but it is not her fault that you take the amount of vacation that you do, and to ask her to financially "pay" for it, either by not getting paid or owing you 400 hours of banked time already is really quite unreasonable and outside the norm. You can, however, ask her to come in and house-sit, work on organization projects that caring for infant twins does not allow, care for plants, etc..) Also, from your wording, I am guessing that you do not have a written contract that specifically outlines the exact details of your agreement. Since you do not, you cannot expect her to now agree to something that was never clearly set by either of you. You have one recollection, she has another. This is a quite common occurance when you enter a business relationship without a business agreement. And your nanny may love your children, and it may seem cold to you to look at this way, but it is a business, and you have to approach it this way. Also, many families pay up front to secure a nanny, such as you did, or pay signing bonuses to get the nanny through a period such as two weeks before a job starts without any expectation of extra hours. So, what I would say is this: You need to sit down with your nanny, make clear that you both have made a mistake by not putting this down in writing, and negotiate the terms of her employ and then put it down in writing. I would let the current "banked" hours go and chalk them up to a lesson well learned. Then you both sign the agreement, and that way, when things come up, you can refer back to the contract instead of "We believed our understanding was..." Does that make sense? That is why a written contract is so vital. These are the exact type of problems that arise. No one means for them to come up, but they inevitably do. For a sample contract, go to www.nannyanswers.com and click on hot topics (It is my website). There is tons of information on there, and there is a sample contract that you can download to Word by cutting and pasting. Go over it with your nanny, iron out the issues, and get it all in writing. If that contract does not work for you, you can also find a similar one at www.lifewithnanny.com. For tax liability and overtime laws, go to www.breedlove-online.com and they can help you. They are domestic tax specialists. That is all they do, and they know both the Federal and State Laws and how they will apply to you.
I am sorry that you are in the middle of all this, and I sincerely hope that you can work this all out.
Tonya
Professional Nanny for 18 years, former Nanny Agency Owner, Nanny Educator
>Our nanny began working for us in mid-March when our
>twins were 2 1/2 months old. We paid her for the
>first two weeks of the month, even though she began on
>the 15th, in order to secure her employ as well as
>help her over the two-week period when she did not
>have a job (her previous post ended at the end of
>February when the child entered pre-school). We
>believed our understanding was that she would bank
>those hours of pay w/o work -- as well as any hours
>for which we paid her when she didn't work (e.g., we
>are taking five weeks of vacation this year, though we
>provide her with two weeks' vacation pay at the time
>of her choice) -- and that we would draw upon them as
>needed. We suggested a straight salary arrangement,
>rather than hourly, in order that she would always be
>ensured of a paycheck in case we took more than a
>customary two-week vacation during the year.
>
>She now believes that the agreement is that she
>receives over-time pay -- over and above her weekly
>pay -- and also believes that she should receive pay
>for when we are on vacation over and above the two
>weeks, regardless that we are out of town and she is
>not working. My husband and I understood that she
>would have a bank of hours (e.g., being paid when we
>are on vacation): if at the end of the year, she
>worked more than the hours in the bank, she would
>receive overtime. If she worked less, then we would
>keep the hours in the bank for future use. She does,
>on occasion, work more than 45 hours/week (a schedule
>suggested by her), but never more than 3-5 hours/week.
>
>Are we being fair in saying that we cannot pay her
>overtime as well as paying her when we are out of town
>for more than two weeks? As per our calculation to
>date, we have paid her for approximately 1200 hours
>and she has worked 805 hours. She now wants overtime
>pay as well as pay for when we are vacation over and
>above two weeks. I think we are being fair in saying
>no, but want to hear others' opinions on it.
>
>Thanks!
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