Q: I was a nanny for a family without a written agreement. They did not tell me they were not going to withhold federal tax
I was a nanny for a family without a written agreement. They did not tell me they were not going to withhold federal taxes from my paychecks, so I am not being hit with their W2 form and a $600-$1500 fee to the IRS because they did not withhold those federal income taxes. Aside from this, I am now seeing through research that a nanny is legally required to be paid overtime if their hours are 40+ per week, and mine were always 45+. I no longer work for this family and they are refusing to pay anything tax-wise, or for the car window their daughter broke. What should I do?
A: A nanny who works in the home and is paid more than $2,100 (2018 amount, $2,000 2017 amount) should have taxes withheld and the employer's contribution for Social Security paid by the employer. Under the federal Fair Labor Standards Act (FLSA), an employee is entitled to a minimum wage, time and a half for overtime (in excess of forty hours per week.) https://www.dol.gov/whd/flsa/index.htm . The Department of Labor's information about filing a complaint may be found at: https://www.dol.gov/whd/flsa/WHD1498HowToFileAComplaint.pdf . The Department of Labor pdf includes the following contact information for seeking assistance in making a Fair Labor Standards Act complaint:
"If you have questions or concerns, you can contact us at 1-866-487-9243 or visit www.dol.gov/whd, where you will be directed to the nearest WHD office for assistance. There are more than 200 WHD offices throughout the country with trained professionals to help you. The information below will be useful to le a complaint with WHD:
• Your name
• Your address and phone number (how you can be contacted)
• Name of the company where you work(ed)
• Location of the company (this may be different from where you worked)
• Phone number of the company
• Manager’s or owner’s name (the person we should ask to speak to)
• Type of work you did
• How and when you were paid (for example, by check every Friday)
Any additional information that you can provide, such as copies of pay stubs, personal records of hours worked, or details about your employer’s pay practices, may also be helpful."
Domestic workers are covered by the FLSA (https://www.dol.gov/whd/regs/compliance/hrg.htm):
"Domestic service workers such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters are covered if:
their cash wages from one employer in calendar year 2010 are at least $1,700 (this calendar year threshold is adjusted by the Social Security Administration each year); or
they work a total of more than 8 hours a week for one or more employers."
A Kansas Wage claim may also apply. If a claim under the Kansas Wage Claim Act applies, it may be filed with the Kansas Department of Labor, or a lawsuit may be filed. Damages under the Kansas Wage Claim Act include the damages owing under the statute and may include attorney's fees.
The Kansas Department of Labor website:
The Kansas Wage Claim form:
You should consult with an attorney to determine the best course of action for seeking the compensation that is due to you. You also mentioned that there was damage to your car as well. An attorney could help you sort out your options for what types of actions to bring and whether you need the assistance of an attorney to handle the case.
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