Do You Need a Non-Disclosure Agreement for Your Nanny?

nanny non-disclosure agreementIn the corporate business world, many companies require their employees to sign a non-disclosure agreement stating that any private and confidential information they come across must remain safe, as employees are privy to reports, policies, procedures, and other internal business-related communications. The world of household employment, while in a very different setting, is not so different when it comes to private information. So do you need a non-disclosure agreement for your nanny or other employee?

As a household employer, your employee has potential access to intimate and sensitive information. Whether it’s overhearing a conversation about finances, seeing a child’s medical records left on the counter, or being given the home alarm system code, your nanny must be trusted to keep information like this private and confidential both during and after their employment. Employers who are well-known in their community and those with celebrity status will be even more likely to make the employee legally bound to keep household information private.

While many employers will simply rely on good faith that their nanny or other employee will not violate that trust, some may wish for the security of a non-disclosure agreement. Such an agreement should be presented when the employee is hired, and should state clearly that the nanny is not to disclose any information pertaining to the household, whether she is on the clock or not. Households with multiple employees may also wish to state that workers may not discuss salary and benefit information with one another*.

* Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to discuss the terms and conditions of their employment, including their work hours, work conditions, and pay. However, domestic workers are among the types of employee not included in this law.

Employers that decide to use a non-disclosure agreement should also include the consequences an employee will face if they violate the agreement by disclosing – or even threatening to disclose – private information. Such consequences could be getting a court order preventing the employee from disclosing such information, or preventing the employee from going to work for someone to whom they disclosed the information. Other consequences could include the employer having the right to claim losses and damages from the employee. Termination is another potential consequence for the employee’s breaking of the agreement.

A New England Nanny’s temporary caregivers sign an agreement with the agency to not discuss or disclose private information. Families that hire long-term caregivers need to create their own agreement if they choose. For more information, contact us at (518) 348-0400.

Is My Nanny an At-Will Employee?

nanny at-will employeeYes, nannies are at-will employees. In every U.S. state except Montana, employment is presumed to be at-will, meaning either the employer or the employee can legally terminate the employment relationship at any time, with or without notice, and with or without cause. The employer has not guaranteed employment for a period of time, and the employee has not promised to stay; therefore, either party can end the relationship without financial penalty. There are, however, exceptions and limitations to the at-will relationship, so employers should still be careful when terminating an employee.

When a nanny and a family sign a long-term agreement for employment, it is not a legally binding contract with regard to the exact amount of time the nanny will be employed. Rather it’s setting expectations for the employment relationship, and serves as a commitment the family is making to the nanny, showing that they want the nanny employed for the length of time designated by the agreement, but does not guarantee that length of time. However, if there is language in the agreement that states a nanny must give two weeks’ notice before leaving, and then the nanny quits without giving such notice, the agreement can be viewed as a legally binding document should the family wish to pursue legal action against the nanny for violating the terms of the agreement.

It’s important to keep in mind that at-will employment does not permit an employer to terminate employment based on the employee exercising a legal right or belonging to a protected class (e.g., race, sex, religion, national origin); such a basis would be illegal and could lead to a discrimination claim. Consequently, the safest way to terminate an employee is to have documentation that justifies the legitimate business reasons behind the termination. This documentation would include infractions of policy, instances of poor performance, and any disciplinary or corrective action taken. The more an employer can do to show that they gave a terminated employee the chance to improve, the better.

The bottom line is that while at-will employment makes it sound like you can terminate a nanny at any time, with or without notice, and with or without cause—and to a degree you can—legitimate and documented business reasons are always your best bet.

For more information, contact us at (518) 348-0400.

Can You Manage Your Nanny’s Off Duty Behavior?

manage your nanny's off duty behaviorLet’s say a family friend saw your nanny at a social event, and they told you your nanny was engaged in questionable behavior (drinking, foul language, etc.). Managing your nanny’s off duty behavior may be a concern. Can you tell your employee how to behave when they’re not on the clock? How much influence do you have?

While employers have the right to regulate employees’ on-duty conduct, they are legally more limited in how much control they can exert when employees are not on duty.

We know issues may arise when employees engage in social activities after hours where they feel they can let loose or otherwise act in a way that is inconsistent with policies when they are working in your home. While an employer can’t regulate what goes on in that setting – in fact, many states protect legal off-duty conduct – you can expect and require that there not be any residual effects that carry over into the workplace. For instance, if a nanny made threatening comments about a certain religious group on their Facebook page, and these comments were seen by you or your child who then felt uncomfortable in the workplace (your home), you would need to address this behavior.

Keep in mind although legally you cannot control your employee’s behavior off the clock, you can ask for discretion in certain areas. Discuss the possibility of issues like this during the interview and early employment process, and lay out clear expectations. Advise your employee to limit who can see their social media activity and reiterate to them that their conduct, even when not on duty, is a reflection both on them and on the family they work for – you! The best thing to do is express your concerns up front. This should help limit problematic behavior when your nanny is off the clock.

For more information, contact us at (518) 348-0400.

Saying Goodbye to Your Nanny

Saying goodbye to your nannyAll good things, and possibly some bad things, must come to an end. One of the most difficult aspects of being an employer is to face the end of an employee relationship, whether terminating an employee or dealing with a resignation.

There are certain ways to handle the end of a relationship, which should be provided in the household’s employee handbook and the work agreement, and should be consistent with relevant laws. The best strategy that any employer can use when terminating an employee, accepting an employee’s resignation, or saying goodbye to your nanny is to address the situation as soon as possible and to be honest.

Always end an employee relationship professionally. Deal with it head-on and without delay. Often, an employer’s first instinct to terminate an employee should be acted upon, since it is seldom that the employer’s perspective or situation changes.

When the relationship ends on good terms, some households make an employee’s goodbye an event, involving the entire family in a dinner celebration or a night of reminiscing. Some employers provide the employee with an album with stories and photos, while others may provide a more businesslike gift, such as a watch or a plaque.

One of the most potentially difficult situations to deal with when a nanny leaves is how it impacts the children. Whether the nanny is leaving on good terms or was terminated for unfortunate reasons, the children she cared for during her employment will certainly have questions about why she’s no longer with them, and in the case of younger kids, they may have developed a real attachment that can be difficult to reconcile. The household employer should be involved in communicating an employee’s departure plans with the family. Household employers may ask the nanny to explain to children why they are leaving the home, what his or her plans are, and how the change may affect the family. Sometimes hearing the news from the nanny may allow the children to understand the situation better.

Employers should reinforce to their children that they are not at fault for the nanny’s departure. Depending on their age, you can be honest about why the nanny is leaving, whether for good or bad reasons. But it’s important to stress that it was nothing the children did to make the nanny leave. Explain to them that some goodbyes are natural, and just because the nanny is leaving, the family need not lose all contact with her. It is merely a change in the relationship; perhaps something that goes from full-time contact as an employee to visits as a guest or a friend, or even an occasional babysitter.

Recognize that there can be a positive ending when one employee leaves, and take the necessary time to prepare the family for a new hire.

For more information, contact us at (518) 348-0400.

Can I Make My Nanny Get a Flu Shot?

nanny flu shot‘Tis the season! As temperatures fall, the risk of illness rises. This is the time of year that many physicians recommend getting the flu vaccine. But some household employees may not want to get it. Families might be concerned, especially with nannies, that someone spending so much close time with children is not vaccinated. Can household employers require flu shots for nannies?

Generally speaking, employers with a specific reason to do so may mandate flu shots. This is particularly true when employees work with sick people or have very close contact with vulnerable populations, such as small children.

It’s also worth noting that the flu vaccine will not completely eliminate the flu, even if your nanny gets a shot. That being said, if a nanny objects based on a reason relating to his or her protected class status, you will need to look into accommodations for them. For example, if a nanny has a disability that prevents her from having vaccinations, or a nanny has a religious objection to vaccinations, there must be an exception to the rule. While vaccine allergies and side effects are rare, such medical and health exceptions must be considered.

Additionally, a nanny may react negatively to mandated flu shots and employers should consider the potential impact on retaining that nanny. To avoid possible litigation and morale issues, we recommend that employers explain the reason behind the flu shot requirement, set a deadline by which the nanny must receive a flu shot, and discuss any objections the nanny may have openly. As a best practice, employers should also communicate that they will pay for the vaccination.

The bottom line is that this issue needs to be discussed prior to hiring a nanny. If you will require a nanny to get a flu shot, they should be made aware of it during the interview process, and your policy should be in the employee handbook. Some nannies will have no objection, but others may see that mandate as a reason to refuse the job. But it’s better to know ahead of time, rather than risk hiring a great nanny and then only learning later on that she has an objection to getting the flu shot, and face potentially losing a valued employee.

For more information, contact us at (518) 348-0400.

Interviewing a Nanny: Asking About Disabilities

interviewing a nannyQ:  We will be interviewing a nanny who came highly recommended. But we have heard from a friend that this nanny has been in and out of the hospital lately due to back pain. Is this something we can ask her about during the interview?

A:  According to the Americans with Disabilities Act (ADA), asking applicants about disabilities prior to making at least a conditional offer of employment is not permitted. The only disability-related question you may ask pre-hire is, “Are you able to perform the essential functions of this job?” or “Are you able to perform the job duties that I have described to you?” In order to get the most useful answer to this question, you should ensure that applicants have been informed of what the essential functions of the position are through a detailed job posting, explanation during the interview, or, as a best practice, both.

In this case, the alleged back pain may no longer be troubling the nanny or, if it’s still a problem, it may be something you can reasonably accommodate. Either way, you shouldn’t ask about it. If the nanny believes she will need an accommodation, it’s her responsibility to inform you of the disability and request an accommodation. If you were to ask about the back pain or hospital visits and then not hire her, she could claim that your decision was based on her disability, or was made because you regarded her as disabled, and was therefore unlawful discrimination.

Additionally, you should not solicit any further information about the nanny’s condition from your friends – any information that would be illegal to gather from her pre-offer is also illegal to gather from other sources.

If you decide to hire the nanny and extend a job offer, then you could request a medical examination or inquire about disabilities.

For more information, contact us at (518) 348-0400.

Tattoo Policy for Nannies

tattoo policy for nanniesQ:  My nanny wants to get a tattoo. Can I ask her not to do so, or require that she cover it while in my home?

A:  An issue like this warrants a discussion with your nanny, and in this case it’s fortunate that she brought up the idea with you beforehand, as opposed to her showing up at your home one day with the tattoo already there. One way to avoid this issue arising during employment is to go over your dress code policy – including tattoos – prior to hiring your nanny.

Some families are widely accepting of “body art” like tattoos and piercings, while others may feel it’s inappropriate for any employee – particularly one that cares for your children – to have them. Assuming your nanny is over 18, she can legally get a tattoo without parental consent. However, as an employer, you have to right to enforce a tattoo policy for nannies. We recommend following your written dress code policy regarding tattoos in the workplace – your home. If your dress code policy does not address covering visible tattoos, or do so in a way you like, consider revising it. You may decide to prohibit visible tattoos entirely or you may simply prohibit tattoos that are offensive, distracting, inappropriate, or over a certain size. The policy could even be something general like “Tattoos must be appropriate and in keeping with a professional image.”

As an employer, you create the rules to promote the “company culture” of your home. You may want to stress that a nanny is a role model of sorts for your children, and seeing their nanny with inked skin may encourage them to want one as well. If that goes against the values you want your children to follow, you need to explain that to your nanny as a reason you do not want to see a tattoo while she is with your kids. If you decide that it’s ok for her to have one, provided it’s covered while in your home, keep in mind that if she takes the kids swimming and wears a bathing suit, the tattoo will likely be exposed.

Whatever you decide, your policy and practice must allow for religious accommodations. Some religions do not permit the covering of tattoos or other religious items, and you should be prepared to make exceptions. When you’ve decided on a policy, be sure to communicate your reasons to your nanny and update your employee handbook.

For more information, please contact us at (518) 348-0400.

Workers’ Compensation for a Bee Sting?

workers' compensation for a bee stingWorkers’ compensation insurance for nannies and other household employees is becoming a crucial issue for household employers to address, and here in New York, if you employ a nanny who works 40 hours in any week of the year, you are required to have coverage. Without coverage, if your nanny is injured or becomes sick while working, you may be responsible for medical bills and lost wages. The following example demonstrates another issue that may arise, especially during the summertime.

Yesterday your nanny was playing with the kids outside and was stung by a bee. She’s allergic and had to go the ER. Are you responsible for workers’ compensation for a bee sting?

Possibly. Whether or not this work injury qualifies for workers’ compensation benefits will depend on a few factors. The sting was not work-related, but the nanny was on the clock. Your workers’ compensation carrier will have to assess whether or not the sting arose out of and in the course of employment. A preexisting condition or existing illness is often only covered under workers’ compensation if it was worsened by working conditions or by performing the job duties. It may come down to how much either party wants to press its case. An ER visit may or may not be worth an insurance battle and the time of the lawyers involved.

We recommend you offer the workers’ compensation paperwork to your nanny, letting her know that she must file a claim in order to receive any workers’ compensation benefits. If she chooses not to file, then ask her to put the decision in writing and note on the workers’ compensation form that the nanny did not want to file a claim. Remind her that you will not retaliate against her either way.

In most circumstances, we recommend allowing your employee to file a claim and contacting your insurance carrier to inform them of any concerns. Once the carrier has the claim and related information, they can analyze the claim and decide how much they want to contest the benefits. In general, it’s best to let them handle the complicated appeals and approval process. After all, they want to control costs just like you do.

No matter how this particular claim plays out, you should inspect your home and arrange for safe removal of any beehives or other pest infestations that present a hazard.

For more information, contact us at (518) 348-0400.

Best Practices When Terminating Your Nanny

best practices when terminating your nannyNo one wants to be in the position of terminating the employment of a nanny or other household worker. Making the process smoother starts with establishing policies and procedures at the time of hire. Here are some quick tips to terminating a household employee the right way:

When the Employee is Hired

  • Establish detailed information in your employee handbook regarding your firing policy and practice as well as severance policy.
  • Obtain a signed confidentiality agreement from your employee.
  • Detail termination procedures in the work agreement.

Before You Inform Your Employee of Termination

  • Prepare a concisely worded termination letter with information on final payment.
  • Practice what you will say. Be prepared, consistent and concise.
  • Gather materials kept in the employee’s file — signed work agreement, performance reviews, history of absences, etc. — to support your termination decision.
  • Ensure that all explanations are legitimate and that your actions can be documented.

When to Inform Your Employee of Termination

  • Avoid any lead time between firing and departing. The best time to set a termination meeting is at the end of the workday.

How to Break the News

  • Meet without children or dependents present.
  • State the decision to terminate twice.
  • Have an adult witness present.
  • Allow for your employee’s response to avoid one-way communication.

What Else You Need to Say

  • Review your severance policy.
  • Let them know they can apply for unemployment compensation (assuming you have been paying “on the books” by paying federal and state unemployment taxes).
  • Reiterate the confidentiality agreement that the employee signed at the beginning of employment. What the employee has learned about the family is private, and that confidentiality was agreed upon for the term of employment, as well as after employment ended.

What Else You Need to Do

  • Provide the employee with a checklist and deadline to return employer property, such as the employee handbook, security codes, keys, car seats, and other family items.
  • Escort the employee from the premises.
  • For security reasons, notify neighbors and your child(ren)’s school that your employee is no longer works for your family.
  • Pay your employee for all hours worked up to termination.
  • Provide a letter of reference for future work (if appropriate).
  • If you have provided health insurance coverage, follow COBRA by offering the employee the option to continue their coverage. Even if exempt from COBRA requirements, consider extending to the employee an option for continued health insurance coverage.

Letting go of a household worker can be stressful and upsetting. With the right preparation and proper procedures in place, you can conduct an effective termination meeting. For more information, contact us at (518) 348-0400.

Sexual Harassment Policy for Household Employers

sexual harassment policyA sexual harassment policy stipulates that no nanny or other employee should be subject to unwelcome verbal or physical conduct that is sexual in nature or that shows hostility to the employee because of his or her gender. Sexual harassment can have devastating effects on the workplace. Therefore, household employers need to take every step necessary to prohibit sexual harassment from occurring. Many workplaces have a zero tolerance policy, which means an employer will not tolerate any sexual harassment whatsoever.

It is best for an employer to include an anti-harassment/anti-discrimination policy in his or her employee handbook, which specifically addresses sexual harassment. The policy should clearly state that:

  • a nanny or other employee and employer(s) within the household are expected to treat one another with respect;
  • the employer will act immediately upon learning of a sexual harassment complaint. An employee should promptly file a complaint if the employee is made to feel uncomfortable or finds behavior unwelcome, offensive, or inappropriate. A complaint may be made formally or informally. The law stipulates that the perception of misbehavior must be reasonable. Employers need to assure employees that all complaints of sexual harassment will be handled as confidentially as possible;
  • the employer mandates a workplace free from all forms of discrimination; and,
  • everyone within the household is expected to act respectfully in order to enjoy a positive working environment.

Employers must be prepared to respond to sexual harassment in the workplace—just as they are responsible for preventing any harassment or discrimination within the workplace. The employee handbook should include what is prohibited behavior in the workplace and what actions will be taken when a sexual harassment complaint is filed. In addition, the policy must state that, per federal law, no employee will experience retaliation for submitting a sexual harassment complaint.

Crossing the Line

The line between home and work, domestic and business, personal and professional, has been blurry for a long time. Unfortunately, sometimes it becomes more than a story of cheating and closed-door liaisons and becomes much more serious. As a result, domestic workers (especially undocumented illegal immigrants) are frequently exposed to verbal and physical abuse, do not know their legal rights or the recourse to any legal protections, and are afraid of losing their jobs if they complain about any harassment or seek legal action.

Many household employees are excluded from Title VII of the Civil Rights Act, which bans sexual harassment in the workplace. But in New York, the Domestic Workers’ Bill of Rights stipulates that it is an unlawful discriminatory practice for any domestic employer to engage in unwelcome sexual advances, request for sexual favors, or other verbal or physical contact of a sexual nature to any domestic worker.

Review the federal guidelines on sexual harassment in the workplace, and contact us at (518) 348-0400 for more information.