Ever been asked to take on an extra duty at work without additional compensation? Or worse, ever received a paycheck that didn’t adequately compensate you for the overtime you worked? Or worst of all, ever flat out not been paid? Scenarios like these are unfortunately all too common in the caregiver industry, and there’s a name for them: Wage theft.
“Wage theft, in the context of nanny, babysitting and other household employee jobs, refers to the failure of employers to pay employees the wages they have earned,” explains Mike Schmidt, an attorney with Schmidt & Clark, L.L.P. in Washington, D.C. “This can include failing to pay minimum wage, overtime or even the agreed-upon salary. As a result, caregivers may be left without fair compensation for their work.”
This, needless to say, isn’t fair (or in many cases, legal), and you don’t have to stand for it. Here, Schmidt and other experts discuss what to do when you don’t get paid what you’re owed.
“Wage theft, in the context of nanny, babysitting and other household employee jobs, refers to the failure of employers to pay employees the wages they have earned.”
— Mike Schmidt, attorney
What is wage theft in the nanny and caregiving industry?
Wage theft, sadly, exists in almost every field, but can hit different in the caregiving industry (which extends to babysitters, nannies, senior caregivers and/or pet caregivers), as it’s generally unregulated and highly nuanced.
Here are a few common industry wage theft scenarios, per Schmidt and Jamie E. Wright, an employment attorney and founder of The Wright Law Firm in Los Angeles:
- You’re not paid for your work (no payment).
- You’re paid less than the agreed-upon rate.
- You’re denied overtime, despite being eligible.
- You’re not paid (at least) minimum wage.
- You’re asked to work after hours (without pay).
- You’re not reimbursed for items purchased or gas, if previously agreed upon.
It’s also worth noting that some positions, such as babysitters, dog walkers and pet sitters, can be particularly susceptible to wage theft, as these folks are often 1099 employees (independent contractors), as opposed to household employees.
What’s the difference between household and 1099 employees?
Nannies and other caregivers are almost always classified as household employees, rather than independent contractors, according to the law.
There can be gray areas, but household employees are individuals employed by a household to perform domestic services, explains Wright. “They are considered employees and are entitled to protections under labor laws, including minimum wage, overtime pay and other benefits.”
“On the other hand,” she continues, “1099 employees, often referred to as independent contractors, are individuals who are in a direct business relationship with their clients. They are not considered employees and are responsible for paying their own taxes and benefits.”
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Preventing wage theft on the front end
In an ideal world, you’ll never be on the receiving end of not being paid.
Have a contract in writing
The best way to mitigate the odds of this happening is to have a written contract in place, according to Megan Metzger, a certified business consultant and long-time advocate for the in-home child care industry.
“To ensure fair and legal payment, caregivers should establish a clear agreement with the family, detailing their compensation amount and frequency,” she explains. “With domestic employees, families should request the completion of tax paperwork before the start date, and employees should have a fully executed agreement and know how they will be paid before the start date.”
Recognize “job creep” before it happens
It’s not uncommon for job responsibilities to change and grow once a regular nanny or caregiver starts working with a family and begins to understand their needs. However, as your workload grows so, too, should your pay. If job responsibilities ramp up without any discussion of pay changes, this is called “job creep,” and it’s important to recognize it in advance and go back to your contract and make changes as warranted for extra duties.
Know your rights
It’s also a good idea to familiarize yourself with your rights. On the federal level, the Department of Labor (DOL) has the Fair Labor Standards Act (FLSA), which lays out minimum wage laws, overtime laws and more.
The DOL also has a guide for state labor laws, which gives more detailed information on what you’re entitled to, based on your state.
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Steps to take if you don’t get paid or paid accurately
Step 1: Try direct communication
Wright, Metzger and Schmidt all agree that the first step to take when you haven’t been compensated is direct communication. Schmidt adds that it’s important to understand whether the lack of payment is due to a misunderstanding, a mistake or is deliberate.
“Address the issue by politely asking about the missed payment and seek clarification on when you can expect to be paid,” says Metzger. “If the employer is having financial difficulties, you might consider discussing a payment plan. We advise caregivers to discontinue care when outstanding payments are due.”
“We advise caregivers to discontinue care when outstanding payments are due.”
— Megan Metzger, certified business consultant
Step 2: Document everything
Finding out the reason will hopefully resolve the issue, but if it doesn’t, “keep a record of hours worked and any communication regarding payment,” he says, adding: “Documentation is crucial in these situations, as it can serve as evidence in case of a dispute.”
Step 3: Escalate the issue
In cases where direct communication with your employer or client proves futile, you can escalate the issue, Wright says. “This could mean seeking legal advice from an employment lawyer who can assist in negotiating with the employer, filing a wage claim with the relevant labor department or pursuing legal action to recover unpaid wages,” she explains.
Note: You can also file a wage claim with the DOL directly through their Wage and Hour Division, either online or by calling 1-866-4USWAGE (1-866-487-9243). Another option is to file a claim directly with your state (which involves searching which office to contact).
Finally, Schmidt says, you can also “seek support from organizations that advocate for the rights of household employees, such as the National Domestic Workers Alliance.”
Helpful links for payment questions for Care.com users
The bottom line
Wage theft happens. And while the best tactic is to prevent it on the front end with a written agreement, your initial step after a missed payment should be “a clear and open conversation with your employer,” according to Schmidt.
If you’re still not compensated, “consider filing a wage claim with the U.S. Department of Labor or even taking legal action,” Schmidt says, as it is, after all, your rightful money.
