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Domestic Service
"Domestic service" refers to service related to the care of persons in private homes or the maintenance of private homes or their premises. Employees such as cooks, waiters, butlers, valets, maids, housekeepers, nannies, governesses, nurses, janitors, gardeners, companions to the elderly and those with disabilities are included. Babysitters, employed on other than a casual basis, are also domestic workers under federal law. Babysitters, whether or not employed on a casual basis, are domestic workers under Oregon 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, 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 general guideline, if the sitter works more than eight hours per week, or earns more than $50 per calendar quarter, or whose vocation is babysitting, the employee must be paid minimum wage and overtime for all hours worked. There is, however, an exemption for sitters under Oregon wage and hour law, such that the employee must be paid no less than the federal minimum wage, currently $7.25 per hour, and overtime for hours worked over 40 in a work week.
 
Q. Does the same requirement apply when the child is taken to the sitter´s home?
 
A. No. When the child is taken to a sitter´s home, a day care center, a pre-school, or other facility, there is no employer-employee relationship and the pay agreement is not subject to the minimum wage and overtime statutes. Consequently, you need only pay the amount the facility or sitter charges. 29 CFR Section 552.105.
 
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 their 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. If the babysitter does not meet the criteria of working on a casual basis, the federal exemption from minimum wage and overtime does not apply, but the state exemption does. Therefore, the employer will still have to pay the federal minimum wage, currently $7.25. 
Q. If an individual is hired to stay with an elderly or infirm person in their own home, must minimum wage and overtime be paid?
 
A. It depends. The federal law changed substantially in this regard in 2015. There is still an exemption from minimum wage and overtime for companions to the elderly or persons with an injury, illness or disability. However, the exemption is now only available if the employer is the person being cared for or the family of that person and not for third-party employers like home care staffing agencies. In addition, the definition of companionship services is now more narrowly defined. It means the provision of fellowship and protection for the person receiving care. The provision of care is also allowed if it is attendant to and in conjunction with fellowship and protection so long as it does not exceed 20 percent of the total hours worked in the work week.
“Fellowship” means to engage the person in social, physical and mental activities. “Protection” means to be present with the person to monitor the person’s safety and wellbeing inside or outside the home. Examples of fellowship and protection include conversation, reading, games, crafts, or going on walks or errands such as appointments or social events. “Care” is defined as assistance with the activities of daily living, such as dressing, grooming, feeding, bathing, toileting and transferring or instrumental activities of daily living such as meal preparation, driving, light housework, managing finances, taking medications and arranging medical care. Oregon law is similar but does not have the restriction preventing third-party employers from claiming the exemption. In applying the law most beneficial to the employee, such employers would be exempt from the higher state minimum wage but not from the federal minimum wage, and overtime would be due for hours worked over 40 in a work week.
 
Q. How are live-in nannies and housekeepers compensated?
 
A. Domestic employees such as nannies, cooks, housekeepers, maids, butlers and valets are entitled to overtime for hours worked over 40 in a work week. If they reside in the home of the employer, they are entitled to overtime for hours worked over 44 in a work week. They must also be paid at least minimum wage for all hours worked. In addition, domestic workers must be provided at least 24 consecutive hours of rest each work week. If the worker agrees to work during a day of rest, the employer is required to pay for that work at the overtime rate of pay (one and one-half times the regular rate of pay). If the workers reside in the home of the employer, they are entitled to at least eight consecutive hours of rest within each 24-hour period and adequate facilities for uninterrupted sleep. Resident domestic workers must also be allowed to cook their own food, subject to restrictions based on the religious or health needs of the home’s residents. Finally, if domestic workers worked an average of at least 30 hours per week during the previous year, they must receive at least three paid personal days off.
 
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. 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 may be recognized as independent contractors and, if so, would not be covered by the minimum wage requirements. On the other hand, if the individual uses your tools and equipment, you set their work hours, and you pay them by the hour, you may be required to pay minimum wage and overtime for all work over 40 hours per week.
 
Updated December 2017

 

 

DISCLAIMER 
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.
 
TECHNICAL ASSISTANCE FOR EMPLOYERS
800 NE OREGON STREET, STE 1045
PORTLAND, OR  97232
971-673-0824
 
 
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