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JB Umphrey
JB Umphrey, Lawyer
Category: Employment Law
Satisfied Customers: 20233
Experience:  Assisting employees and employers for over 14 years.
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Is my babysitter an independent contractor I came home and

Resolved Question:

Is my babysitter an independent contractor? I came home and found her asleep for a second time with my small children unsupervised. I told her I could not have her back. She has now contacted the labor board and they are suing me for unpaid overtime and lost wages. At the end of every week, she was asked how much she was owed. We paid what she asked. How can she come back at me for overtime? The labor board is demanding that I file as a business and provide workers compensation, and that I have to furnish lunch breaks. How can that possibly be expected? Do I have to have a babysitter come in to give the other babysitter breaks?
Submitted: 5 years ago.
Category: Employment Law
Expert:  JB Umphrey replied 5 years ago.

MI-Lawyer :

Thank you for using JustAnswer!

MI-Lawyer :

How often does this person provide babysitting services for you?

Customer:

4 to 5 days a week.

MI-Lawyer :

And do you control not only what work is done, but how it is done and when it is done?

Customer:

no, she is home with the children

MI-Lawyer :

Do you control when she does the babysitting?

Customer:

she is offered hours and chooses what she wants to take

MI-Lawyer :

Does she babysit in your home?

Customer:

yes

MI-Lawyer :

And there are rules that she must follow, such as: she can't sleep while she's babysitting?

Customer:

common sense says not to leave children unsupervised, so i'm not sure that's a rule as much as not doing the job if she is sleeping

MI-Lawyer :

Does she work through an agency?

Customer:

no

MI-Lawyer :

How many other families does she sit for?

Customer:

I don't know.

MI-Lawyer :

From the facts you've described, in the eyes of the IRS, she would be considered to be a household employee. Not an independent contractor.

MI-Lawyer :

This link provides a brief overview of it: http://www.irs.gov/businesses/small/article/0,,id=97877,00.html

Customer:

So, how can I owe her overtime if I paid her what she said I owed her at the end of a week?

MI-Lawyer :

I do not know what the numbers were between you two so I cannot speculate on that.

MI-Lawyer :

How old is she?

Customer:

20

MI-Lawyer :

As a general matter, the "employer" is responsible for maintaining the payroll records. The fact that you choose to ask her for a number does not erase the employer duties with respect to payroll records, making income withholdings, and paying state/federal employment taxes, etc.

MI-Lawyer :

I assure you that you are not the first parent who has been caught off guard by this.

MI-Lawyer :

Notably, as the IRS explains " It also does not matter whether you pay the worker on an hourly, daily, or weekly basis, or by the job."

Customer:

so what do I do? I'm going to owe thousands of dollars to her, plus the taxes, and have to regester as a business . how is this fair when she endangered my children?

MI-Lawyer :

I understand why you are so upset by this.

Customer:

do i have any recourse at all?

MI-Lawyer :

It is of no legal consequence that she fell asleep. That does not eliminate the employer's need to comply with the laws concerning household employees.

MI-Lawyer :

You could still discontinue her employment. There's no doubt about that.

MI-Lawyer :

However, for the past work that she did, the compensation, taxes, etc. has to be done in compliance with the law.

Customer:

So I have to register as a busines and pay business taxes, etc?

MI-Lawyer :

Your tax preparer/CPA can assist you in doing all that.

Customer:

OK, thank you.

MI-Lawyer :

You are most welcome.

MI-Lawyer :

If you have a follow-up question, please reply and ask it.


If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.

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