Chapter 12:
Hiring Child Care, Elder Care, or Household Help
Many people hire others to work regularly in their homes—for example, to take care of children during the workday, care for elderly parents, or clean the house. These relationships are often set up informally, with no written agreement. But informal arrangements can lead to problems. If you don’t have a written agreement clearly defining responsibilities and benefits, you and those helping you are all too likely to have different expectations about the job. This can trigger serious disputes—even to one or both parties bitterly backing out of the arrangement. Far better to draft a clear written understanding of what the job entails.
The agreements in this chapter are for hiring care providers and other household workers who are employees, not independent contractors. When you hire an employee, you set the hours, responsibilities, and pay rate of the worker. Legally, most babysitters and household workers who work for you on a regular basis are considered employees for whom you are required to pay taxes, Social Security, and other benefits described below. In contrast, independent contractors typically own their own businesses and work for you only occasionally.
This chapter also includes a Child Care Instructions form you can use for either a full-time child care provider or an occasional babysitter.
RESOURCE
For detailed information on hiring child care, see Nannies & Au Pairs: Hiring In-Home Child Care, by Ilona Bray (Nolo). For more information on hiring independent contractors, see Working With Independent Contractors, by Stephen Fishman (Nolo).
Legal Obligations for Employees
Assuming your child care worker, elder care worker, or housecleaner is your employee, you have legal obligations to that person, which come with a certain amount of paperwork and record keeping. You do not have to put this information in your child care, elder care, or housekeeping agreement, but you need to be aware of your responsibilities.
Social Security and income taxes. If you pay a child care or elder care worker $2,100 or more (2019 figure), you must make Social Security (FICA) payments on those wages and withhold the employee’s share of FICA. You do not have to deduct income taxes from wages paid to an employee for working in your home unless the employee requests it and you agree to do so. You make these payments by attaching Schedule H, Household Employment Taxes, to your annual Form 1040.
Your state government may also impose separate tax withholding requirements. Contact your state taxing authority, or ask your payroll service (if you use one).
Unemployment compensation. If you pay a household employee $1,000 or more in a three-month period (2019 figure), you must pay quarterly taxes under the Federal Unemployment Tax Act (FUTA), using IRS Form 940 or 940-EZ. As with FICA, you pay this amount by attaching Schedule H, Household Employment Taxes, to your annual Form 1040.
Workers’ compensation. Your state may require you to provide workers’ compensation insurance against job-related injuries or illnesses suffered by your employees. Check with your state department of labor or employment.
Minimum wage and overtime. The federal minimum hourly wage is $7.25 (2019). Your child care or elder care worker may be entitled to minimum wage, depending upon their particular hours and earnings. If your state minimum wage is higher, you will need to pay the state wage. In addition, under federal law, most domestic workers (other than live-in workers) qualify for overtime pay. Workers must be paid overtime at a rate one-and-a-half times the regular rate for all hours worked beyond a 40-hour workweek. You can check the U.S. Department of Labor website, www.dol.gov, for current information about federal and state minimum wage laws.
New Hire Reporting Form. Within a short time after you hire someone—20 days or less, depending on your state’s rules—you must file a New Hire Reporting Form with a designated state agency. The information on the form becomes part of the National Directory of New Hires, used primarily to locate parents to collect child support.
Federal ID number. If you hire a household employee, you must obtain a federal employer identification number (EIN), required by the IRS of all employers for tax filing and reporting purposes. The form you need is IRS Form SS-4, Application for Employer Identification Number.
| IRS Resources |
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The IRS has a number of publications and forms that might help you. Call the IRS at 800-424-FORM or visit its website at wwW.irs.gov to download these forms and publications. Start with Publication 926, Household Employer’s Tax Guide, which describes the major tax responsibilities of employers. You may also want to look at:
- Form SS-8, which contains IRS definitions of independent contractor and employee, and
- Form SS-4, Application for Employer Identification Number.
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| Reality Check |
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Many families don’t comply with the law that requires them to pay taxes or Social Security for certain household workers, some of whom are undocumented aliens. This chapter is not intended to preach about the law, but to alert you to the rules that affect your relationships with care providers and housekeeping workers. No question, if you fail to pay Social Security and to meet your other legal obligations as an employer, there may be several negative consequences.
- You may be assessed substantial financial penalties. For example, if your full-time elder care provider files for Social Security five years from now and can prove prior earnings, but no Social Security has been paid, the IRS could back-bill you at high interest rates.
- If you don’t meet a state requirement to provide workers’ compensation insurance and your child care worker is injured while on the job and can’t work for a few months, you may be in hot water if the worker files for workers’ compensation. You will probably be held liable for the worker’s medical costs and a portion of any lost wages, as well as be fined for not having the insurance in the first place.
- You will not be able to take a child care tax credit on your federal income taxes. The credit is based on your work-related expenses and income, but can actually offset the amount you might save by paying under the table.
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Form 82: Child Care Agreement
A child care provider who takes care of your children in your house, either part time or full time, may live out (often called a caregiver or babysitter) or live in (a nanny). The responsibilities of the position may vary widely, from performing a whole range of housekeeping services to only taking care of the children.
CAUTION
Do not use this form if you hire a care provider or house cleaner through a placement agency. If you use an agency that sets and collects the worker’s fee from you, pays the worker, and controls the terms of the work, the agency will have its own contract for you to complete. People you hire through an agency are not your employees—they are the employees of their agencies.
CAUTION
Special rules govern hiring of au pairs. If you hire an au pair from another country (on a cultural exchange visa), you’ll need to comply with federal laws governing the au pair’s responsibilities, working hours, rate of pay, and more. An au pair agency will help you with this process. For these reasons, we don’t recommend using the child care agreement provided here if you’re hiring an au pair from another country.
Use this form to spell out your agreement about the child care worker’s responsibilities, hours, benefits, amount and schedule of payment, and other important aspects of the job. The best approach is to be as detailed as possible.
Start by filling in your name, address, phone numbers, and other contact information for yourself (and a second parent if another parent will be signing the Child Care Agreement) and your child care provider. List your children’s names and birth dates.
Here’s some advice on filling in various sections of the Child Care Agreement:
Location and Schedule of Care (Clause 4). Provide the address where child care will be provided (typically your home) and the days and hours of care, such as 8 a.m. to 6 p.m. weekdays. Live-in nannies often work some weeknights and weekends.
Beginning Date (Clause 5) and Training or Probation Period (Clause 6). Specify the date employment will begin and the length of any training or probation period, such as the first 15 or 30 days of child care. This is the time to make sure that the relationship will work for everyone involved. A training period helps your child care provider get to know your home and neighborhood and the exact way you want things done. If there will be no training or probation period, you can skip this clause.
Responsibilities (Clause 7). The responsibilities of the child care position may vary depending on many factors, including the number and age of your children; whether the child care worker lives in or out; the hours worked; your family situation and needs; and the skills and background of the child care provider. In some households, particularly with infants and toddlers, the babysitter only takes care of the children and does not do housework, except for doing the children’s laundry. In other families, especially with older children, the employee may function more as a housekeeper, cook, and chauffeur. You should specify the child care worker’s responsibilities in as much detail as possible, including cooking, bathing, and personal care for your children, social and recreational activities (such as arranging the children’s play dates), transportation (driving kids to and from school or practices), shopping and errands for the family, housecleaning, ironing, and laundry.
Example: Here’s an example of responsibilities for a live-in nanny taking care of an infant (Kate), and preschooler (Tom):
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The child care provider’s primary responsibility is to provide loving care of Kate and Tom. This includes playing with and reading to them, taking them to the park as weather permits, making sure they have naps as needed, and preparing their meals and snacks. The care provider will bathe Kate and Tom every other day, more frequently if necessary. Other responsibilities include driving Tom to “Baby Gym” twice a week, doing the children’s laundry, and keeping their rooms tidy.
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Wage or Salary (Clause 8). You should specify exactly how the child care provider will be paid, such as an hourly rate or weekly salary. How much you pay depends on many factors. These include the number and ages of your children; the type of care provided and responsibilities; the number of hours, time of day, and regularity of the schedule; the experience and training of the employee; benefits such as room and board; and the going rate in your community. Check local sources to find out what similar workers are being paid—neighborhood websites and social media groups are a great source for this type of information. Before you fill in this section, be sure you understand your legal obligations when hiring an employee, such as minimum wage and overtime rules, as described above.
Payment Schedule (Clause 9). You can decide to pay your child care provider weekly (say, on Friday), twice per month (such as on the 15th and on the last day of the month), or once per month.
Benefits (Clause 10). In addition to payment, you may offer the child care provider any benefits you wish, such as paid vacations and holidays, health insurance, or sick leave. Spell out the rules for using these benefits, such as how much advance notice you need of planned vacation time, and what happens if the child care provider gets sick after having used up all his or her sick leave.
Termination Policy (Clause 11). If things don’t work out, the Child Care Agreement provides a termination policy that allows either the parents or the child care provider the right to terminate the agreement at any time, for any reason, and without notice.
Confidentiality (Clause 12). This protects your privacy, and potentially, that of your friends, coworkers, and clients.
Additional Provisions (Clause 13). Describe any additional terms of this agreement, such as a schedule for salary reviews, house rules, such as a no-smoking and no personal visitors policy, or a requirement that the child care provider take a first aid course.
Modifications (Clause 14). This agreement provides that any changes to it must be made in writing and signed by all parties to the agreement. This protects both the parents and the child care provider against misunderstandings over major issues that were agreed to verbally.
Signing Instructions
To make the Child Care Agreement valid, the parent(s) and the child care provider must sign it. (If you and your children’s other parent are living in the same home and raising your kids together, it’s best if both of you sign this document.) Print out two copies of the form. You, your children’s other parent (if signing the form), and the caregiver must sign and date the form where indicated. Give one of the signed originals to the child care provider and keep the other for your records.
| Shared In-Home Care |
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Some families pool their resources and share an in-home child care provider. These arrangements are ideal for neighbors or coworkers with children who are close in age. Just as a written agreement between a family and a child care worker can clarify expectations and prevent conflicts, a written understanding between the two families who are sharing a child care provider can accomplish the same objectives. If you share in-home care with another family, be sure you agree on the key issues before drafting your contract with the child care worker, including location of the care, splitting expenses, termination procedures, and supervision. The other parents should make their own child care arrangements with the care provider.
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Form 83: Child Care Instructions
Use this form to provide important information for babysitters and child care providers (including au pairs), such as phone numbers of doctors, instructions about meals and naps, and other details of your child’s care, including any allergies or health conditions your child has.
This form has space for you to fill in the names, addresses, and phone numbers of people that your babysitter or child care provider can contact if they can’t reach you in an emergency. We suggest that you list at least two or three friends, relatives, or neighbors who live nearby and are well known to your children and family. The form will print out with a reminder to call 911 in case of emergency. If you wish to list another emergency number for the police, fire department, or poison control, you may do so.
Finally, the Child Care Instructions form has space to provide additional important information your family or home, such as the location of first aid supplies, the phone number of a local taxi service, or the fact that you have a rule against smoking, drinking alcohol, or entertaining personal visitors in the house.
RELATED TOPIC
Use a separate form to authorize medical care. While these Child Care Instructions provide important medical information about your child, such as any medications or allergies, this form does not authorize your babysitter or child care provider to arrange medical care for your child. For that, you will need to use the Authorization for Minor’s Medical Treatment (see Chapter 1).
Signing Instructions
There is no need to sign the Child Care Instructions. Simply fill in the information and print out the form after reading it carefully to make sure all information is complete and correct. Give the babysitter or child care provider a copy and keep one posted in a prominent place, such as on your refrigerator. Be sure to review and update your Child Care Instructions from time to time.
Form 84: Elder Care Agreement
Many older people remain at home or live with relatives rather than enter a residential facility for extended recovery or long-term care. Often this requires hiring someone (an elder care provider) to help with their personal and medical care, cooking, housekeeping, and other services.
An elder care provider (sometimes called a home health aide) can either live out or live in, and work full or part time. The responsibilities of this position may vary, from performing a wide range of housekeeping services to attending to the personal and health care needs of the older adult (or adults, in case the elder care worker is taking care of two people, such as both of your parents). Responsibilities may range from dispensing medicine to helping with bathing to driving to doctor’s appointments, activities, or social functions.
Use this form to spell out your written agreement about the elder care worker’s responsibilities, hours, benefits, amount and schedule of payment, and other important aspects of the job. The best approach is to be as detailed as possible. Follow the directions for the Child Care Agreement when completing this form.
Signing Instructions
To make the Elder Care Agreement valid, the employer(s) and the elder care provider must sign it. Start by printing out two copies of the form. You (the employer) and the caregiver must sign and date the form where indicated. Give one of the signed originals to the elder care provider and keep the other for your records.
Form 85: Housekeeping Services Agreement
If you hire the same person every week to clean your house, a written contract can be a valuable way to define the worker’s responsibilities and benefits. If your housecleaner will be your employee, use this form to spell out the housecleaner’s hours, benefits, amount and schedule of payment, termination policy, and other aspects of the job. Your agreement should cover regular weekly cleaning tasks (Clause 5)—for example, cleaning the bathroom and mopping the kitchen floor—as well as occasional projects, such as washing blinds. Be sure to spell out other responsibilities as well (Clause 6), such as cooking, laundry, ironing, shopping, gardening, and yard work. The best approach is to be as detailed as possible. Follow the directions for the Child Care Agreement when completing this form.
Signing Instructions
To make the Housekeeping Services Agreement valid, the employer(s) and the housekeeper must sign it. Finalizing your housekeeping services agreement is easy. Start by printing out two copies of the form. You (the employer) and the housekeeper must sign and date the form where indicated. Give one of the signed originals to the housekeeper and keep the other for your records.
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