Both federal and Oregon wage and hour law require employers to pay covered employees one and one-half times their regular wage for all hours worked in excess of 40 in a workweek. As the funny commercials featuring that gecko would say, “everybody knows that.” What many people may not know, however, is that the overtime requirements also apply to employees who work in your home.
Back in 1974, the federal Fair Labor Standards Act, first enacted during the depression, was amended so as to make its overtime requirements specifically applicable to “an employee in domestic service” who works longer than 40 hours in a workweek. “Domestic service employment” is defined in the federal regulations to mean:
“…services of a household nature performed by an employee in or about a private home of the person by whom he or she is employed. The term includes employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use. It also includes babysitters employed on other than a casual basis….”
Put another way, domestic service employees are those who “perform home-related, non-commercial labor in private family homes and whose work, but for the availability of outside paid help and the economic means of the homeowners to compensate the same, would be done by … members of the family unit.”[i] So, if you employ a full time nanny, for example, you may very well be subject to the FLSA requirements.
Not every domestic service employee who works in your home is entitled to overtime pay. The FLSA does exempt some domestic service workers from its overtime mandates, namely: (1) persons employed on a casual basis to provide babysitting services; (2) those employed to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves; and, (3) those employed in a household and who reside in the household.
A homeowner who fails to pay his or her domestic service workers in accordance with the FLSA requirements faces monetary damages well in excess of the withheld wages. Under the FLSA, an employer’s failure to pay overtime entitles the employee to an award of “liquidated damages”, i.e., an amount equal to the unpaid overtime. Oregon law allows an employee to collect “penalty wages”, in an amount equal to an employee’s regular rate of pay for up to thirty days. In addition, the employee who prevails in court on his or her claims is also entitled to recover attorney fees.
If you are employing domestic service employees in your home, you must also keep records which show the total hours worked each week by your employee, as well as the extra pay earned by said employee for weekly hours worked in excess of 40.
© 12/15/2014 Charles A. Ford of Hunt & Associates, P.C. All rights reserved.
[i] Marshall v. Cordero, 508 F. Supp. 324, 325 (D. P.R. 1981).