Household employee overtime rules are commonly misunderstood, and often just plain ignored. The vast majority of household employees - nannies, senior caregivers, housekeepers, etc. - are classified as non-exempt (NOT exempt from overtime rules) employees. These household employees must be paid overtime. At the Federal level the rate of overtime pay is determined by whether the household employee lives with the employer or maintains their own separate residence. Live-in domestics are paid for their overtime hours at their regular hourly rate; live-out domestics are paid at 1.5 times their hourly rate for hours over 40 in the 7 day work week. Note MANY states extend the overtime differential of 1.5 times the hourly rate to live in domestics, and some states mandate daily, not weekly, overtime.
However some more skilled household employees - estate managers, head housekeeper or house managers for example - may be considered exempt or hourly employees. This classification is largely depended on the actual work performed and not on the employee's title. This is where the change is coming!
Salaried employees are paid the same amount every work week regardless of the actual number of days worked or actual hours worked. The primary work performed by a salaried household employee must be supervision, not actually doing (there is an 80/20 rule used in this determination). Today, in general a salaried household employee who is paid $23, 600 per year or more (last updated in 2004) AND has a span of control over two or more employees AND whose time is primarily spend in supervisory activities may be considered exempt from the FLSA's overtime rules.
New Household Employee Overtime Rules
Changes are coming, however, and now is the time to prepare. In March 2014 President Obama signed an executive memorandum instructing the U.S. Department of Labor to review the standards defining a salaried, exempt employee. The US DOL has published proposed rules changes in July 2015 that are widely expected to become effective 2016.
The key change for household employment is the implementation of a formula that sets the minimum annual salary for an exempt (salaried) worker that keeps up with inflation without the need for rules changes. This formula, if adopted, would increase the minimum weekly salary in 2016 to $913 or $47,476 annually. In 2016, a salaried household employee earning between $47,476 and $134,004 annually must meet the supervision tests described above to retain the exemption from overtime. It is assumed that highly compensated employees earning $134,004 or more per year and who “customarily and regularly” perform one of the exempt duties of an administrative, executive or professional employee are generally exempt. The duties requirement is relaxed because a high level of compensation is a strong indicator that an employee is exempt.