"Domestic service" refers to service of a household nature performed by an employee in or about a private home of the employer. Employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, gardeners, and companions to the elderly are included. Babysitters, employed on other than a casual basis, are also domestic workers under federal law.
This information has been prepared to help you understand wage and hour laws that affect domestic employment. The answers under state law sometimes vary from federal law but employers must always apply the standard most beneficial to the employee.
Q. If a babysitter provides child care in a private home on a regular basis while the parent(s) work, is the payment of minimum wage and overtime required?
A. Yes. Federal law is stricter in this situation and requires employers to pay federal minimum wage and overtime. As a rule of thumb, if the sitter works more than eight hours per week, or earns more than $50 per calendar quarter, or whose vocation is babysitting, he/she must be paid minimum wage and overtime for all hours worked.
Q. Does the same requirement apply when the child is taken to the sitter´s home?
A. No. When you take your child to a sitter´s home, a day care center, a pre-school, or other facility, there is no employer-employee relationship and your pay agreement is not subject to the minimum wage and overtime statutes. Consequently, you need only pay the amount the facility or sitter charges.
Q. Is it necessary to pay minimum wage and overtime if a babysitter is hired on a "casual basis," for example, when parents go out for the evening?
A. No. Employment may be said to be on a casual basis if the individual does not depend on the income for his/her livelihood. Examples include teenagers during non-school hours or older persons whose livelihood is through other means. If the services being performed for one or more employers do not exceed 20 hours per week in the aggregate, or if in excess of 20 hours per week, the employment is without regularity, or is for irregular or intermittent periods, it is also determined to be casual and is therefore excluded from minimum wage and overtime requirements.
Q. If an individual is hired to stay with an elderly or infirm person in his or her own home, must minimum wage and overtime be paid?
A. No. Companionship services provided in a family home for individuals who are unable to care for themselves because of age or infirmity are exempt from minimum wage and overtime under both federal and state laws.
Q. How are live-in housekeepers compensated?
A. Domestic employees residing in the household where they are employed are exempt from overtime. They must, however, be paid minimum wage for all hours worked. When federal and state minimum wage rates are different, the employer must pay the higher rate.
In determining the number of hours worked by a live-in worker, the employee and employer may agree to exclude sleeping time, meal time, and other periods of complete freedom from all duties when the employee may either leave the premises or stay on the premises for purely personal pursuits.
Any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted in determining the number of hours worked.
Q. At what age may minors operate power mowers if employed at a private residence?
A. In most areas of employment, minors under 16 may not operate power lawn mowers; however, when minors are hired to work in private residences by the owner of those residences, they are not subject to these restrictions. You may, however, wish to consult your attorney or insurance company to find out your liability if the minor is injured.
Q. Is the payment of minimum wage required for people hired to do yardwork?
A. In general, minors or adults who mow lawns and perform other yard work in a neighborhood community generally provide their own equipment, set their own work schedule, and occasionally hire other individuals. Such persons are recognized as independent contractors and are not covered by the minimum wage requirements. On the other hand, if the individual uses your tools and equipment, you set their work hours, you pay them $50 or more during a calendar quarter and/or the employee works more than eight hours (total hours of domestic service for all employers) during any workweek, you will be required to pay minimum wage and overtime for all work over 40 hours per week.
Nothing on this
website is intended as legal advice. Any responses to specific questions
are based on the facts as we understand them, and not intended to apply to any
other situations. This communication is not an agency order. If you
need legal advice, please consult an attorney. We attempt to update the
information on this website as soon as practicable following changes or
developments in the laws and rules affecting Oregon employers, but we make no
warranties or representations, express or implied, about whether the
information provided is current. We urge you to check the applicable
statutes and administrative rules yourself and to consult with legal counsel
prior to taking action that may invoke employee rights or employer responsibilities
or omitting to act when required by law to act.
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