Hiring a Nanny FAQ

By Jenny T. Swinerton

What type of documentation should I obtain to ensure my nanny is legally able to be employed in the United States?

An employer may not knowingly engage an unauthorized alien for work, even under independent contract. As an employer, you must attest on an I-9 form to having seen prescribed documentation of any job applicant’s identity and authorization to work. Acceptable I-9 documents include: a U.S. passport, driver’s license, social security card, certificate of U.S. citizenship or naturalization, or an alien registration receipt card.

Is my nanny considered an independent contractor or an employee?

In almost all cases, a nanny who works in a family’s private home is considered an employee, not an independent contractor. Because a family will likely exercise a significant degree of control and direction over how the nanny performs his/her duties, most nannies are classified as employees. There are limited exceptions to this rule, such as when the family pays a nanny agency directly. When this occurs, the agency, and not the family, is typically considered the nanny’s employer.

Do I need to obtain workers’ compensation insurance for my nanny?

Except in the limited cases when a nanny is employed by another entity (such as a nanny agency), the answer is yes. As an employer, you are required to provide worker's compensation protection in case of injury. Such coverage can usually be purchased in conjunction with your homeowner's insurance. This access to insurance is a significant benefit that can protect you from considerable costs if your nanny is injured on the job.

Do I have to pay social security, Medicare, and unemployment compensation taxes? What happens if I don't?

Again, except in the limited situation where your nanny is employed by someone else (like a nanny agency), you – as the nanny’s employer – are required to withhold and remit payroll taxes. These include social security (FICA) and Medicare taxes, which are based on a number of factors such as your nanny’s classification as a "resident" or "non- resident alien.” An employer is required to pay 7.65 percent of the nanny’s salary for social security and Medicare taxes, and 1.5 percent of the nanny’s salary for unemployment compensation taxes. Failure to properly withhold and timely remit the taxes could result in the imposition of penalties and interest.

Am I required to pay my nanny overtime?

No, you are not required to pay your live-in nanny overtime, however, you are not excused from paying him/her at the minimum hour wage for all hours worked. By agreement with your live-in nanny, you can exclude the amount of sleeping time, meal time, and other periods of freedom that will not count as hours for which the nanny will be compensated at the regular rate. If your nanny does not reside in your home, you will be required to pay the nanny overtime if he/she works more than 40 hours in any one workweek.

Do I have the right to install surveillance equipment (Nanny Cams) in my home?

Under Ohio law, video surveillance that intercepts oral communication is restricted. However, an exception applies when one party to the communication gives prior consent. Several courts have recognized that a parent may vicariously consent on behalf of their infant child to video surveillance. You may also request in the employment agreement that the nanny consent to being recorded.

Does there need to be a written contract with my nanny?

Although not legally required, it is smart for both parties to enter into an employment agreement. The agreement should contain provisions regarding the nanny’s job duties, compensation, vacation and sick days, and holidays. The agreement should also provide guidelines for releasing the children to the care of others, administering medications, and how the nanny should handle emergency situations. A confidentiality provision regarding your personal and household information is also advisable. The agreement should also confirm the nanny’s at-will employment status.