Nanny share -- only 1 family needs overtime

[Anonymous]

We currently host a 40 hour/week nanny share, but I am considering a new job that would require us to retain our nanny for 5 hours of overtime per week. Our share partners were quite firm on wanting only 40 hours per week, so they almost certainly won't want to extend their child's day with the nanny.

Assuming our nanny is open to working an extra hour with just our kiddo, how much overtime do we pay in this situation? We each pay $12.50/hour, so $25 total for the nanny. Would we pay a full time and a half for the two child rate -- $37.50 per hour of overtime? Or would we pay time and a half on a separately negotiated one-child rate (say $20/hour, so $30/hour for overtime)? I've tried Googling and haven't found anyone else describing a situation like ours. Any help you could give would be much appreciated, it's really important to us to pay legally and have everything above board!

[Anonymous]

You pay the single child overtime rate, $30 in your example.

And if the other family requests OT I think they should also pay that rate for the inconvenience. That will either stop them from using OT after declaring they don't want it, or it will convince them to just pay for OT and use it as needed.

[Anonymous]

Actually, according to every nanny on this site, each family is a separate employer and must pay minimum wage. Therefore, there is no separate amount. You pay 1.5x on the part you pay ($12.50), unless she says no to the overtime at that rate, and then you can negotiate to pay more.

The FLSA, however, says that you pay 1.5x on the total amount ($37.50), because the law is that you are joint employers, and the rate you pay is the rate you pay as joint employers. You do not each have to pay minimum wage separately as long as the worker always receives at least the minimum wage for each hour worked, but you are each required to pay the full hourly wage for all hours worked, and overtime is 1.5x that rate. Here is that regulation: https://www.dol.gov/whd/regs/compliance/whdfs35.htm

However, I did find a letter from the FLSA administration that talks about exactly your situation, and it says that you can negotiate a separate base amount for a different type of work and pay 1.5x on that amount (so, your $20/hr single child rate, or whatever you guys decide it is).

Here is what that letter says (https://www.dol.gov/whd/opinion/FLSANA/2005/2005_02_14_1NA_FLSA_TwoJobs.htm):

However, if the employer meets certain conditions, Section 7(g)(2) permits an employer to pay an employee overtime compensation at one and one-half times a different hourly rate than the employee’s regular hourly rate. If an employer wishes to use the Section 7(g)(2) alternative compensation calculation, the employer must satisfy the following four requirements.
the employee must perform two or more kinds of work;
the employer must establish a bona fide different hourly rate for those different kinds of work;
the compensation must be paid pursuant to an agreement or understanding arrived at between the employer and the employee in advance of the performance of the work; and
the compensation must be computed at rates not less than one and one-half times such rates applicable to the same work when performed during non-overtime hours.

[Anonymous]

The PP is 99% right except the OT is not on the one child rate, but instead based on the blended hourly rate. (Or average hourly base rate). This means if your one child rate is $20/hr, legal OT will be $43.33, not $30/hr. The reasoning being, OT is based on the fact over 40 hours were worked. You can't pick and choose which hours are the OT hours.

[Anonymous]

PP here. Whoops, I based my numbers on a two child rate of $30/hr.

If the two child rate is $25/hr and that is used for 40 hours. And you pay an additional $20/hr for one child for 5 hours, the OT rate is based on an average base salary of $1100 for 45 hours or 24.44/hr. This means the blended OT rate is 36.66. The nanny therefore gets the average base rate for 40 hours and the blended OT rate for 5 hours - or Approximately 1180/wk

[Anonymous]

Actually, the section I quoted said the $20 base rate would apply if it is considered a different kind of work. Blended rate applies if it is a different rate for substantially the same work. So.is 1 child vs 2 children the same type of work or different?

Also, the OP was suggesting that they negotiate a single child rate that does not currently exist. I suggest, OP, that you figure out what you're willing to pay for that OT, see if she agrees, and then define the single child rate so that the blended rate results in that overtime amount.

[Anonymous]

I say it would be fair to all parties involved to pay the overtime rate on just your child.

[Anonymous]

Why not ask the nanny if she'll consider the extra workload for the $25/hr?

[Anonymous]

OP here. Thank you all! This is really helpful. If I take the job I think I will do what 21:42 suggests, and propose a 1-child rate that results in a blended overtime rate we're comfortable with.

[Anonymous]

Anonymous wrote:I say it would be fair to all parties involved to pay the overtime rate on just your child.

So she'd actually make LESS for overtime hours? I realize it's one child and not two, but I'd be surprised if she would agree to that. I agree that it's worth asking if she'd stick to the $25 for the one child OT, and then you can figure out the blended rate from there.

[Anonymous]

Anonymous wrote:OP here. Thank you all! This is really helpful. If I take the job I think I will do what 21:42 suggests, and propose a 1-child rate that results in a blended overtime rate we're comfortable with.

Just to be clear, you presented your original question as the employer, but you're actually the nanny?

[Anonymous]

Anonymous wrote:

Anonymous wrote:OP here. Thank you all! This is really helpful. If I take the job I think I will do what 21:42 suggests, and propose a 1-child rate that results in a blended overtime rate we're comfortable with.

Just to be clear, you presented your original question as the employer, but you're actually the nanny?

OP here -- sorry for the confusion! I am the employer, looking to propose something that's both legal and acceptable to our current nanny. (The reason I said "take the job" is that I'm considering a new job that would mean I couldn't be home in time for our current share pickup.)