As a busy family hiring a nanny, it might be hard to wrap your head around the legalities that arise when employing someone in your home. The same goes if you are a nanny and unsure of what rights you have.
It is in the best interest of both you and your nanny to have a partnership based on professionalism and following the law during the span of employment. At Preferred ChildCare, we know that is a lot to work through, so that’s why families and nannies come to us to help guide them through all of that!
In this post, we will help you understand your rights, whether you are the family working with a nanny or a nanny working for a family.
A common misconception is that if you hire a nanny on your own, the nanny should be given a 1099 as an independent contractor. In actuality, they should be considered as a household employee according to IRS Publication 926 if you pay your nanny more than $2,600 in a calendar year. As their employer, you must give your nanny a W-2 to file their taxes and you as their employer must properly file and pay federal and state taxes as well as Social Security and Medicare.
As a household employee, your nanny is also entitled to overtime pay whether or not you consider them a full-time or part-time employee. Overtime pay means that they are paid time-and-a-half for working over 40 hours in a 7 day workweek.
You also need to be aware that household employment taxes should be paid throughout the year. 1040-ES estimated payments should be sent to the IRS four times per year and in general, state tax filings should be made quarterly (though check with your specific state to be sure).
Paying your nanny legally also comes with the comfort of knowing you won’t have to worry about being audited by the IRS for tax fraud if you were to get caught, along with a slew of other penalties, fines, and back taxes. You can also take advantage of tax breaks when you follow the law, which include use of a Dependent Care FSA for children under 13 years old and a Child or Dependent Care Tax Credit (IRS Form 2441).
We understand that for many families who wish to hire a nanny, they feel overwhelmed at the thought of trying to avoid legal pitfalls and just want to get a quality nanny candidate in their door as soon as they can. This is why many families choose to use a nanny agency that they trust to do the heavy lifting for them.
For all of the families that work with us at Preferred ChildCare, we suggest GTM Payroll or Homework Solutions, industry experts in nanny payroll, withholding, and tax law, for the latest information. We also take care of labor laws, salary, and benefits as your nanny’s official employer.
Whether you decide to work with a nanny agency or not, both the family and nanny should work off of a contract or a services agreement and be prepared to treat one another professionally and legally. This agreement is considered legally binding and is an important framework to form a strong understanding of responsibilities and expectations during your work together so that there is less chance for problems to occur.
It also protects you as an employer because it shows that the nanny is meeting your expectations and taking their position seriously.
Beyond legal considerations, as a family, you should expect that your nanny is a safe person for your child or children to be around.
A thorough background check on your nanny candidate is highly suggested to ensure that you are hiring someone you feel comfortable with. This could include a criminal background check, sexual misconduct check, and driving record history. At Preferred ChildCare, we use a 12-Tier screening process that you can learn more about here with our nanny candidates.
Your nanny should also follow any guidelines you put in place about who is allowed around your children and in general, the nanny should not bring outside guests or significant others around when she is caring for the children unless it has been discussed and cleared with you first.
Furthermore, your nanny should also respect the privacy of your family. This includes not posting photos on social media with your children in them unless they have your permission.
You also have the right to work with a nanny who adheres to professional boundaries. The nanny you work with should treat their work as a job, and behave in a manner that reflects the respect that they have for you and your family.
The nanny should arrive on time to work, dress appropriately, and treat your home, belongings, and pets with respect.
To help form a successful relationship with your nanny, we suggest that you use an employee or nanny handbook to communicate rules, practices, and policies around working in your household and with your children.
Some topics you might want to cover in your handbook include:
You have the right to expect the nanny to follow the guidelines you have laid out, but you should also communicate with your nanny if there are occasional amendments that need to be made. Clear and consistent communication between you and your nanny will go a long way in preventing misunderstandings between your expectations and your nanny’s expectations and make sure you are both on the same page.
Let your nanny know how often to expect feedback and the criteria you will use for giving evaluations or constructive feedback so that they can improve in areas that may need adjustments. In turn, you should expect updates from your nanny on the children according to how you want this feedback. Remember, you are operating as a team with a common goal of taking care of your children the best that you can.
When working as a nanny, you also have legal rights. However, many of these rights depend on your employer. You waive your rights when you are paid under the table, so it is in your best interest to first and foremost work for an employer who follows the law.
An employer who follows proper employment laws will:
Although your employer is not required to provide you with benefits, such as health insurance, you should take this into consideration before signing any agreements or beginning work so that you know what is covered or not covered.
As a full-time nanny, you should receive paid time off from work. Two weeks of paid vacation is a typical expectation, although you will have to work out with the family if the dates are up to them or at your request.
You also have the right to have holidays or days off for religious observance, but you will again need to discuss these ahead of time with the family. It is normal to have paid sick days, with five being the average for full-time nannies. Again, ideally you should be aware of the number of sick days you have before you sign an agreement with the family.
As a full-time employee, you have an expected salary in your agreement.
If the family decides to take a vacation and gives you time off, then you should still be paid for this time unless something else has been negotiated upfront with the family.
The same goes if your employer lets you off early during a regular work day. You have the right to be paid in full.
You should expect overtime pay if you work more than 40 hours in a workweek, according to the Fair Labor Standards Act.
You are a professional when it comes to providing childcare and should also be treated as such by the family you work for.
Just as you would expect to meet the expectations laid out by the family in your agreement with them, you also have the right to expect that the family also meets your expectations of doing what they say they will do. The relationship you have as a caregiver to the family’s children is a two-way street. You should be clear on the family’s expectations from the start so that you can follow through and prioritize your work.
For example, the family should stick to duties that are mainly focused on taking care of their children, not overly focused on housework or cooking. These assigned tasks should be outlined in your handbook, and occasionally may need amending–however, this should be discussed with you first. You have the right to communicate with the family when you feel like duties are piling up or not sticking to those that have to do with the children.
You also have the right to be notified by the family when they will return later than you expected. Your employer should respect your time and not make it a habit to be routinely late when you should be relieved of your duties.
Your rights also include being reimbursed for any mileage used when driving your charges or when purchasing something for the family that was requested.
Once again, communication with the family should be regular and open to facilitate understanding and awareness on both sides. As a professional, you know that regular constructive feedback from the family will help improve your work, and feeling like you are able to have open communication with the family you serve will also allow you to feel more comfortable and respected as a professional nanny.
A successful long-term partnership between a family and nanny can be achieved if both parties are open with their communication to one another, able to receive constructive feedback and adjust, and have each other and the children’s best interests at heart.
Protecting your rights through a contract or agreement before you begin working together is the best way to make sure you are aware of and have managed your expectations on both sides.
Of course, we suggest working with us at Preferred Childcare to make sure you are covered in all aspects as either a family looking to hire a nanny or a nanny in search of a great position! Contact us today to learn more!
For more tips on working with nannies as a parent, follow the Preferred ChildCare blog!
