Do you employ a nanny for your children, a housekeeper or a companion for your sick or elderly parents, pay them in cash and fail to keep records of their employment? If so, you are leaving yourself open to a costly lawsuit. Since 2010, household workers in New York are covered by the Labor Law's minimum wage and overtime laws. Currently, the minimum wage is $8.75 an hour. Their workweek is 40 hours (44 if residing with her employer). Anything over that must be paid time and a half. They must have one day off a week. You must obtain coverage for disability benefits and if they work at least 40 hours a week, you must obtain Worker's Compensation coverage.
Even if you comply with this portion of the law, you might still find yourself in trouble. Under the law, each employer must maintain for six years a record of the number of hours worked daily and weekly and the amount of wages, among other things. Every employer must furnish to the worker a statement with every payment of wages listing hours worked, rates paid, gross wages, deductions and net wages. Any employer who fails to keep the proper records is guilty of a class B misdemeanor. In addition, the employer then has the burden of proving that the employee was properly paid. The courts will accept the employee's oral testimony and if you do not have the required records, you will lose your case.
Even if you paid your worker the proper wage, if it was paid in cash and no records were kept, you will not be able to defeat your employee's claim that she was underpaid. This would leave you liable for years of underpaid wages, which will be doubled unless you can prove the underpayment was made in the good faith belief it was the legal wage, plus the employee's attorney's fees.
The bottom line is that you must treat all household employees as you would your employees in an outside business.
They must be paid the proper wage and detailed records must be kept.
Kim Steven Juhase, ESQ.
Partner, Novak Juhase & SternCheck us out on Facebook, LinkedIn, and at njslaw.com