Revised Recordkeeping Requirements for Employers of Live-in Domestic Service Workers

The US Department of Labor on September 17, 2013 issued revised rules within the Fair Labor Standards Act (FLSA) that codify recordkeeping requirements of employers with live in domestic service workers. The revised rules closely mirror the recordkeeping advice that HomeWork Solutions gives all household employers. Good recordkeeping is not just the law; it also protects the household employer from unpaid wage claims.

Records Household Employers Must Maintain

1. Employee’s full name and Social Security Number. This is collected on Form I-9, and is mandatory for all US employers. The Form I-9 must be retained with the employer’s permanent payroll records.
2. Home address, including zip code.
3. Hours worked each workday and total hours worked in each seven day work week.
4. Total wages paid each week to the employee by the employer. Note: If paying cash, HomeWork Solutions strongly encourages you to maintain signed receipts to evidence the payment.
5. Weekly sums claimed by the employer for room and board. The vast majority of household employers with live in domestic service workers provide the room and board for the employer’s convenience, as a condition of employment. In these situations there is no right to claim room and board against the domestic worker’s wages.
6. Extra pay for hours worked in excess of 40 in the work week. Live-in domestics under Federal law must receive no less than their regular hourly pay rate for all hours worked. All other domestics are entitled to an overtime differential of no less than 1.5 times the regular hourly rate for all hours over 40 in the seven day work week. (Note: some states extend the overtime differential to live-in domestics.)

Private households who employ a domestic service worker who qualifies for the companionship services exemption are not required to keep the records specified in 3 – 6 above; however, it is a best practice to keep these records as a protection to both the employer and the employee.

Special Recordkeeping for Live-in Domestic Workers

Household employers are required to maintain payroll records for their live-in workers – typically live-in nannies or live-in elder caregivers – as all hours on duty must be compensated. Private households often have questions regarding the definition of on-duty time. A live-in domestic service worker is considered to be on duty when she is required to be on the premises, either working or waiting to work, and is not free to leave and pursue her own interests.

The household employer and the live-in domestic may mutually agree to exclude bona fide sleep time, off duty meal breaks and other off-duty time from compensable hours worked, even though the live-in domestic worker may be physically present in the home.

A meal break is considered off duty if the live-in domestic is free to leave the premises for the meal. A nanny, for example, who takes her meal break while the child is napping is not free to leave the premise and this is treated as an on-duty break, and the time must be included in hours worked.

Household employers who employ live-in domestics are strongly encouraged to enter into a written work agreement with their nanny or caregiver to mutually define her work schedule and her on-duty time. The live-in nanny must be paid for all on-duty time, even if called to duty during time specified as off duty in the written agreement. This includes situations where sleep time is interrupted by a call to duty.

Effective January 1, 2015 the household employer must track and record all hours worked by the domestic service workers, including hours worked by live-in workers. The household employer may require the nanny or caregiver to record these hours worked; however, the obligation to make and keep records rests with the employer. The written agreement specifying on and off duty time will no longer be considered sufficient documentation.

The FLSA does not specify an exact timekeeping method. The record must include:

1. The date worked.
2. Time in and time out, and
3. Total time worked in the work week.

Employers must maintain pay records for a minimum of three years, and time cards for no less than two years.

Other Resources:

Title 29 § 552.102

Household Employment Rules State by State