Could Mrs. Doubtfire and Mary Poppins been entitled to overtime pay?
Got your attention, didn’t I?
Part of this week’s post addresses the question, “When is a live-in nanny not a live-in nanny”? If they’re not really a live-in then, guess what? They can get overtime. But this post will, hopefully, be about more than just that. Read on to learn more…
The 11th Circuit recently reversed a FLA US Dist Court ruling that granted summary judgment to a nanny’s employer reasoning that she worked long shifts, generally sleeping over and spending significant time in the parents’ home, and therefore found her to be a live-in exempt from getting overtime pay.
While the nanny did work one 23-hour and 4 14-hour shifts consecutively during each week, and did sleep over during that time, during the rest of the week she lived with her aunt. (The court also noted that she worked 79 out of 168 hours each week and therefore spent less than half the week in the family’s residence.)
She didn’t have a key to the parents’ house, and each week she had to pack and bring an overnight bag. She slept on a bed in one of the children’s rooms and switched off using that bed with 4 other nannies that worked for the family. For those and other reasons, the court found that she did not “reside” at the family’s house. She now is potentially entitled to about 39 hours of overtime each week over approximately 3 years.
The other question is about whether the parents were her “employers”. The nannies for most of the time were supplied and paid through an LLC. The parents paid the LLC and the LLC paid the nannies. The court remanded the case to the Dist Ct to decide that question. The factual questions there revolve around how much if any control the parents exercised over the work, time and work conditions of those nannies they hired through these agencies.
While it’s not the main focus of this post, here’s a fun fact: Even if the parents hired the nannies through agencies, they can be joint employers if they exercised enough control over the nannies, work conditions and their work. (The parents claimed they exercised no control and were unaware of anything going on with the nannies in their home, caring for their children. Proving that would seem to be an uphill climb, but that’s what the remand to the US District Court is supposed to address). This type of relationship is known as joint employment and is more common than you might think — but that’s a topic for a separate post.
The case is Blanco v Samuel and Finch.
Now for the zoom-out: This case is also relevant when an employee is working on-call, especially when they have to be on premises during that time. (Think security guards, firefighters, some nurses and other healthcare workers, etc.) If you have employees on your premises or who for any time aren’t doing specific job tasks but you have enough control over how they use their time, then you likely have to pay for that time — and overtime if that time brings them over the 40-hour line in any week.
Btw, Mrs. Doubtfire definitely had her own separate residence, so yes, she’d get OT pay if she worked more than 40 hours in any week.
Now, Mary Poppins is another story. First the story took place in England, so I can’t really comment on wage and hour laws there. She did live in the parents’ house for the relatively short time that she was with the children. At the same time though, she pretty much set her own work conditions, so maybe she wasn’t an employee at all, but an independent contractor? I know, now I’m really getting off track.
So let’s return to the big-picture issue at hand: If you’re expecting a lot from your employees and only looking to provide the bare minimum don’t be surprised when they push back — or leave– or decline a job offer. Yes, they need a job, but you need the help. You wouldn’t be hiring them if you didn’t…
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