Anonymous wrote:I am a non exempt employee ( not a Nanny) and acrue AL and SL.
If I used an AL day on Monday and then have to work late on Wednesday then I get OT for those hours on Wednesday.

OK, but your employer is not required by federal law to do this. It is possible that your employer does this as part of union-negotiated compensation, or because the employer can't be bothered to input hours differently in weeks with and without leave, or because your employer doesn't know the law, or because your employer does this for the benefit of the employees (which is what we are telling this MB to do). Also, if you work in a state that requires OT after a certain number of hours per day, it is also possible that working late on Wednesday puts you over that threshold regardless of what happened the other days of the week.

In any case, federal law does not require them to pay you OT until you work 40 hours in a pay period.

I am a non exempt employee ( not a Nanny) and acrue AL and SL.
If I used an AL day on Monday and then have to work late on Wednesday then I get OT for those hours on Wednesday.

If you are new to being a nanny employer, the extra expenses in being a good employer can really hit you like a ton of bricks. I suggest taking some time to become ok with it, or it's going to make you see red every time you write a check for something that you hadn't thought of previously. Whatever you budgeted for nanny care, the costs will exceed that unless you have already factored in:

taxes
unemployment insurance
workman's comp
a generous yearly bonus
guaranteed hours and extra OT
vehicle costs (gas and maintenance, or IRS reimbursement rate for nanny-owned vehicles)
annual raise or other additional compensation in health stipend, time off, or other stipend
costs of feeding another adult on outings
cost of admission fees, supplies, petty cash
cost of new strollers, car seats, etc. that you might not need but nanny does

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:It’s should be specified in your contract. I think nanny should be paid her normal salary during vacation or sick day. If nanny calls out sick and no longer has PTO, then, she should be paid for actual hours worked that week. Each situation is different and the best thing to do is talk to your employer and come up with something that works for everyone.

OP here. It is not addressed in the contract and we are attempting to address the issue now, as it has come up. Nanny has vacation and sick time, that’s not the issue. If nanny is working outside of her normal working hours, which would generally be OT hours, but not actually working over 40 hours due to vacation, do you pay regular rate or OT rate?

Everyone who has responded understands your point exactly. No, you are not legally obligated to pay OT in those circumstances. Everyone is telling you to do it anyway. I was the 2nd or 3rd poster and I said to pay her the OT. I'm a MB, not a nanny.

+1 I'm a NP. We pay our nanny OT whether or not she worked a day that week. For example:

July 2: 9 hours
July 3: 9 hours
July 4: PTO 9 hours
July 5: 9 hours
July 6: 9 hours

Yes, I guess technically I could have paid her for 36 hours regular time, plus 9 hours vacation, but I didn't. I paid her 40 hours regular time, plus 5 hours of overtime. We do the same whether it's holiday pay, vacation, or sick leave.

We LOVE our nanny and she is amazing with our kids, and we want her to be happy. My office doesn't dock me for vacation time, so I don't dock my nanny for hers. Don't breed resentment by being cheap.

Anonymous wrote:Yes, you pay the overtime hours as if she worked. This is what is legal, without question.

No it isn't. Here. Read for yourself: https://www.dol.gov/whd/regs/compliance/whdfs23.pdf

"The regular rate includes all remuneration for
employment except certain payments excluded by the Act itself. Payments which are not part of the regular rate
include pay for expenses incurred on the employer's behalf, premium payments for overtime work or the true
premiums paid for work on Saturdays, Sundays, and holidays, discretionary bonuses, gifts and payments in the
nature of gifts on special occasions, and payments for occasional periods when no work is performed due to
vacation, holidays, or illness. "

Anonymous wrote:

Anonymous wrote:It’s should be specified in your contract. I think nanny should be paid her normal salary during vacation or sick day. If nanny calls out sick and no longer has PTO, then, she should be paid for actual hours worked that week. Each situation is different and the best thing to do is talk to your employer and come up with something that works for everyone.

OP here. It is not addressed in the contract and we are attempting to address the issue now, as it has come up. Nanny has vacation and sick time, that’s not the issue. If nanny is working outside of her normal working hours, which would generally be OT hours, but not actually working over 40 hours due to vacation, do you pay regular rate or OT rate?

Everyone who has responded understands your point exactly. No, you are not legally obligated to pay OT in those circumstances. Everyone is telling you to do it anyway. I was the 2nd or 3rd poster and I said to pay her the OT. I'm a MB, not a nanny.

Anonymous wrote:

Anonymous wrote:It’s should be specified in your contract. I think nanny should be paid her normal salary during vacation or sick day. If nanny calls out sick and no longer has PTO, then, she should be paid for actual hours worked that week. Each situation is different and the best thing to do is talk to your employer and come up with something that works for everyone.

OP here. It is not addressed in the contract and we are attempting to address the issue now, as it has come up. Nanny has vacation and sick time, that’s not the issue. If nanny is working outside of her normal working hours, which would generally be OT hours, but not actually working over 40 hours due to vacation, do you pay regular rate or OT rate?

I’ll be honest, there is no manual and those who employ nannies do whatever fits their situation. In my case, my nanny works 45 hours per week so she gets paid for 45 hours during her vacation (both of her choosing). Legally, there is no wrong answer because you are required to pay for hours actually worked but you can choose to pay her her normal salary. However, because this is something that wasn’t discussed, nanny may be thinking she is getting paid her normal salary during her vacation.

My opinion would be to pay her her normal salary during vacation (this year), if you can and moving forward (if it’s something you can’t continue to do) let her know you will only pay her for 40 hours during vacation/time off.

Anonymous wrote:

Anonymous wrote:Overtime is based on hours worked. Not vacation, sick, etc.

If your nanny worked 33 hrs and took 8 hrs vacation in one week.

That’s 33 regular hours and 8 non working hours


The only state this differs in is California. They pay on a daily and weekly base.

This is not correct.

.


Care to state why it’s not correct?


And yes OT is paid on all WORKING hours.

*hourly at the regular rate, should say.

OP, the way we handled this was to subtract any vacation time on an hourly basis from the vacation hours accrued. Then any time worked was calculated separately and, if appropriate, OT was applied once it crossed the threshold. (However, we are notably in CA, where, as a PP noted, OT kicks in daily over 8 hours in addition to weekly over 40, so it came up less often since we had 9-hour days, so if two days were taken off that week, there would till be OT on the ninth hour of each of the remaining three days.)

Anonymous wrote:Yes, you pay the overtime hours as if she worked. This is what is legal, without question.

No, it isn't. In fact, it's very explicitly NOT what is legal. This is all covered on the DOL website.

You pay overtime on hours worked, not including vacation, sick leave, and holidays. If you go over 40 hours without that time, then OT kicks in. You do not count those hours toward the overtime threshold.

Now, you could well have a contract that says for each day/week of vacation, the nanny is paid the regular daily or weekly rate (which would include any OT). But there is no requirement to pay OT if the hours were not actually worked.

I’m a nanny and if I happen to have two days off during the week, but work an extra hour on a different day during the week, then that is counted as an hour of overtime.

Anonymous wrote:

Anonymous wrote:Overtime is based on hours worked. Not vacation, sick, etc.

If your nanny worked 33 hrs and took 8 hrs vacation in one week.

That’s 33 regular hours and 8 non working hours


The only state this differs in is California. They pay on a daily and weekly base.

This is not correct.

OP here. This is correct. OT is only required to be paid for hours actually worked over 40. When taking a vacation day, that puts nanny below 40 hours and therefore OT is not legally required for additional hours worked.

OP here. Thanks again everyone. Two PPs stated the law, which I understand and the bulk of my question is whether people generally follow the legal side of OT, or count the vacation time as time worked and pay additional time as OT. I am guessing that the two PPs would not pay OT for additional hours worked...?

To reiterate, we are clear on vacation pay and the like, which is paid for the nanny’s guaranteed hours, 5 of which are OT. When using a vacation day/week, any hours worked outside of nanny’s regular schedule, which would normally fall into OT pay, now falls into regular pay due to not actually working 40+ hours. This is where employee and employer are having a difference in opinion. Both parties understand the legality, but the nanny has generally had any vacation time counted as working hours and would therefore been paid OT for additional hours, whereas the employer is seeing the legal side and not wanting to pay OT for the additional time worked.

Anonymous wrote:Overtime is based on hours worked. Not vacation, sick, etc.

If your nanny worked 33 hrs and took 8 hrs vacation in one week.

That’s 33 regular hours and 8 non working hours


The only state this differs in is California. They pay on a daily and weekly base.

This is not correct.