Employing a nanny: legal considerations

Written by Inceptive
Estimated reading time: 4 minutes

What questions should you ask before hiring a nanny? For most parents, when they begin the search for a nanny, they focus on the questions that they want to ask the nanny - What is her experience with childcare? What would he do in case of a medical emergency? Would they be ok with overnight childcare shifts? While these are all important questions to consider, there are some equally important questions that parents must ask themselves before they even start the hunt for their nanny. 


You’ve made the decision that a nanny is the best childcare option for you. Congratulations! That decision alone does not happen without a lot of research, thoughtfulness and consideration. Next, the process of finding the right nanny begins. It can be a daunting one, but there is a lot of help available! Alice Desrosiers, LCSW, leads Inceptive's three-part class series covering the most important aspects of hiring a nanny.


For the past 22 years Ms. Desrosiers has been helping parents find the right nanny for their family. She also founded The Institute for Families and Nannies (TIFFAN), a nonprofit focused on providing education, training, resources, and advocacy for everyone invested in a child’s development. In her first class of this series, ‘6 Essential Legal Issues You Should Know Before Hiring a Nanny,’ Ms. Desrosiers covers the legal aspect of becoming an employer.


One aspect that parents should be aware of is the fact that a working relationship with a nanny often results in blurred relational lines. As a nanny performs ‘mothering work’ and will grow close to the child that they care for, it can be difficult to keep a strict employer-employee relationship. It is for this reason that it is especially important to have clear boundaries before hiring your nanny, and it is very helpful to have them in writing.  


Issues of legality and employment can seem daunting, but there are six main areas. What these areas entail will, of course, vary depending on the state and country that you live in, but you can assume that they will be very similar, no matter where you live. These issues are more relevant than ever, as there have been several bills passed in the last five years that clarify the status of nannies as domestic workers and afford them the protections granted to hourly employees[1], including paid sick leave in California, a minimum wage and overtime. 


As you consider these legal areas, you will also have to consider if you are going to comply with the laws, and what your risk factors are if you do not. While it is advised that you comply with all employment laws, some people do chose to disregard them. They do so at their own risk, and not following the law can result in large penalties. So, what are the legal aspects of hiring a nanny that you should consider? 


The first is the person’s immigration status. The Department of Homeland Security deals with this aspect, and you, as an employer, are expected to verify that any person that you hire can legally work in the country. The 1986 Immigration Reform and Control Act[2] makes all U.S. employers responsible for verifying, through a specific process, the identity and work authorization or eligibility of all individuals, whether U.S. citizens or not. There is a form[3] to be filled out and kept in a nanny's employment file. If your nanny is deported you are without childcare. If you are found to have hired a nanny without work authorization. you could face public scrutiny.  

nannies are hourly wage employees, not independent contractors
Nannies are hourly wage employees, not independent contractors


Next, you need to make sure that you have a system in place for paying all of your nannies regular and overtime hours. The Department of Labor oversees this area. There should be a contract (covered in detail the last class of this series) in place stating what the regular and overtime pay is, as well as the duties expected of the nanny, just to make everything clear. Your nanny should then keep a timesheet, which you pay each pay period. Non-payment or underpayment can result in your nanny quitting and suing. 


Another important aspect is the payment of taxes. As nannies are hourly wage employees, not independent contractors, parents will have to withhold Federal Unemployment Insurance, Disability Insurance, Social Security, Income and Medicare taxes, from their nanny’s gross earnings. The IRS covers this area, and there is always the risk of an audit with hefty fines if this is not done correctly. 


In this article, we briefly went over three of the six main legal areas that you should be aware of when hiring a nanny. Participate in Inceptive’s class ‘6 Essential Legal Issues You Should Know Before Hiring a Nanny’ to learn even more and get the advice you need from an expert you can trust.

[1] “Domestic Workers Rights.” Hand In Hand, domesticemployers.org/our-work/domestic-workers-rights/.

[2] Simpson, and Alan K. “S.1200 - 99th Congress (1985-1986): Immigration Reform and Control Act of 1986.” Congress.gov, 6 Nov. 1986, www.congress.gov/bill/99th-congress/senate-bill/1200.

[3] “Who Needs Form I-9?” USCIS, 25 Mar. 2011, www.uscis.gov/i-9-central/complete-correct-form-i-9/who-needs-form-i-9/who-needs-form-i-9.

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