Is It Legal to Pay 1/2 Rate Overnight Instead of OT?

[Anonymous]

Trying to use these discussion boards to figure the most fair and LEGAL way to pay nanny. Hiring a 24hr nanny 5 days a week for the next 2 months. I have a 2 & 5 year old. I understand because she is NOT a live-in (she is technically working 24hrs a day/ goes home on her days off) I have to pay her for every hour worked. What I'm confused about is that some on this board say they pay 1/2 the nannies hourly rate or a straight night wage ($50-100). Is reducing the rate technically legal? If she is working 120hrs a week, shouldn't I pay her regular rate for 40hrs, then OT rate for 80hrs? My children sleep well during the night, and nanny probably will have time to sleep- but at the same she will be on duty and working. My husband and I will be out of the house. And children may wake up for many reasons.

I am trying to understand the conflicting information I'm reading on these boards. I know nannies are exempt employees and have to paid hourly for all hours worked. And they get time and a half for hours over 40. But I have also read that legally you don't have to pay 8hrs of sleeping hours in a 24hr period.

Then why would a nanny agree to do a job and work tons of extra overtime hours and either not get OT, but actually get half rate or nothing at all for that time worked?

Again my question is, what is the legal way to pay a 24hr nanny?
Of course I would like the least costliest way, but I also want to be fair. I need the services of a nanny 24hrs a day. And I intend to pay for all services rendered.

Option A: 40 Regular Rate, 80 OT Rate
Or
Option B: 40 Regular Rate, 40 OT Rate (if I legally don't have to pay for 8hrs in a 24hr period).

I guess I could also "legally" make the regular rate very low, so I can pay the 80hrs OT rate. This is instead of cutting the overnight hours rate in half.

But another question would be why a nanny would except these positions in the first place??? Work double the hours, and get half the pay. Why is widely accepted that you can buy a nannies time in bulk and save big? It would be odd in any other position to pay different rates at different times of day. An hour worked, is an hour worked.

[Anonymous]

I'm an MB, and I think this is all a great question. Hope someone knows the answer!

[Anonymous]

You can legally exempt 8 hours out of a full 24 as long as she is able to sleep during that time (ie no duties keeping her up and an adequate sleeping place.) If she is woken up to work, you have to pay (OT) for that time and if she ends up sleeping less than 5 hours you have to pay the entire night.

Here's the link:
http://www.dol.gov/whd/regs/compliance/whdfs22.htm

[Anonymous]

Anonymous wrote:You can legally exempt 8 hours out of a full 24 as long as she is able to sleep during that time (ie no duties keeping her up and an adequate sleeping place.) If she is woken up to work, you have to pay (OT) for that time and if she ends up sleeping less than 5 hours you have to pay the entire night.

Here's the link:
http://www.dol.gov/whd/regs/compliance/whdfs22.htm

+1

[Anonymous]

I can't believe how unclear the government discribes things on the DOL website. I think it discribes that 24hr definatley should get paid for sleeping, because she is working.

"Definition of "Employ"
By statutory definition the term "employ" includes "to suffer or permit to work." The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place. "Workday", in general, means the period between the time on any particular day when such employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee's scheduled shift, hours, tour of duty, or production line time.".

---A 24hr Nanny is commencing her principle activity while "sleeping", she is responsible for watching over the child during the night.---

"Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait."

--- A 24hr nanny is waiting on the child, not unlike the fireman.---

"On-Call Time: An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated."

---A 24hr Nanny is on call & waiting on employers premises"----

"Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken."

---A 24hr nanny is alert and technically working, thus this usualy creates an interrupted sleep---

"This fact sheet provides general information concerning what constitutes compensable time under the FLSA. The Act requires that employees must receive at least the minimum wage and may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rates of pay for the overtime hours. The amount employees should receive cannot be determined without knowing the number of hours worked."

---So that's an unequivocal YES OP! Pay nanny 40 hours regular rate, and 80 hours OT!!!

[Anonymous]

As long as you pay a minimum of $1170 a week, you are paying a legal wage.

[Anonymous]

Anonymous wrote:

"Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken."

---A 24hr nanny is alert and technically working, thus this usualy creates an interrupted sleep---

I think it's pretty clear that if you have a place for the nanny to sleep and your child "usually" sleeps through the night, you can exclude up to 8 hours of work time. You can't just say that as a worker, you couldn't sleep because you were waiting for a possible incident that usually does not occur. Obviously if you have an infant who wakes up every few hours, that doesn't count as "usually" allowing for an uninterrupted sleep.

[Anonymous]

Anonymous wrote:

Anonymous wrote:You can legally exempt 8 hours out of a full 24 as long as she is able to sleep during that time (ie no duties keeping her up and an adequate sleeping place.) If she is woken up to work, you have to pay (OT) for that time and if she ends up sleeping less than 5 hours you have to pay the entire night.

Here's the link:
http://www.dol.gov/whd/regs/compliance/whdfs22.htm

+1

This is what I got from that link too.

[Anonymous]

I don't mean to be snarky, but I am honestly curious about why you might need a 24 hour nanny?

You say she will "probably" be able to sleep. Which indicates her sleep at night might not be great sleep due to being on call (this paid responsibility is different than parental responsibility - no one punishes you if you don't hear the kid immediately). So to me, that indicates she should be compensated for the 8 hours at night, unless you agree to wake with the children.

Alternatively, you can have her keep a formal log of when/if she wakes with the kids, so that you can pay her a variable rate during those 8 hours nightly.

[Anonymous]

Nanny sleep is very different than parent sleep! You are working and responsible at all times during the night. It is a very restless night. You wake every couple of hours to check the monitor or because you might have heard a cry. You can't take Ambian or any sleep aids. You can't have a glass of red wine to relax, or wear your usual ear plugs. You need to be alert and ready.

You are on call, ready to be on call at someone's residence, you can't decide to sleep those 8hrs at your boyfriends house.

[Anonymous]

What are you and your husband doing for five months that you'll be gone all night? When do you expect the nanny to sleep if you expect her to work day and night?

[Anonymous]

Anonymous wrote:Nanny sleep is very different than parent sleep! You are working and responsible at all times during the night. It is a very restless night. You wake every couple of hours to check the monitor or because you might have heard a cry. You can't take Ambian or any sleep aids. You can't have a glass of red wine to relax, or wear your usual ear plugs. You need to be alert and ready.

You are on call, ready to be on call at someone's residence, you can't decide to sleep those 8hrs at your boyfriends house.

lol, I don't think this is what you mean - but just wanted to point out that you just exactly described "parent sleep" as well It's obviously up to the nanny and employer to determine prior to the job, but an employer can legally not pay a nanny for those 8 hours if it is as described in the law.

[Anonymous]

Anonymous wrote:What are you and your husband doing for five months that you'll be gone all night? When do you expect the nanny to sleep if you expect her to work day and night?

At night, when the kids do.

[Anonymous]

Anonymous wrote:

Anonymous wrote:What are you and your husband doing for five months that you'll be gone all night? When do you expect the nanny to sleep if you expect her to work day and night?

At night, when the kids do.

And remember - a nanny can turn down the job. She's not forcing anyone into anything, she's at the point where she's determining what she needs to pay legally. It's also up to the nanny and the employer both to decide on the compensation. If the nanny thinks it's not fair (even if it is legal), she can say no.

[Anonymous]

Ultimately you need to find a compensation package that the nanny you want for the job is happy with. How you divide it up is secondary.

Like you said, it has to be worth her while.