Most Washington families with children have hired a baby-sitter or nanny to watch their young ones at some point. These workers are generally paid in cash for a defined period of time. This raises questions of whether the situation creates an employer-employee relationship, and whether it entitles an injured baby-sitter to worker’s compensation benefits.
Under both the federal Worker’s Compensation Act and Washington’s Department of Labor and Industries, most employers in Washington state must provide worker’s compensation coverage for workers they hire. However, employers of ‘domestic servants’ are exempt from the requirement. Unfortunately, the definition of such work remains vague. So, what exactly is a domestic servant?
Significantly, the many workers compensation departments (such as that in Wisconsin and many southern states) treat the positions of domestic baby-sitters and nannies as exempt from the Act, which exposes these workers to general negligence claims.
The title “domestic servant” is clearly antiquated. It brings to mind historical images of butlers, maids, cooks and others toiling away on the plantations and mansions of the wealthy. Yet although terms have changed, now favoring “domestic worker”, the realities of inequality in the workplace remain. For example, in Wisconsin, without citation or authority, a Department publication indicated that it has “consistently ruled that persons hired in a private home to perform general household services such as nanny, baby-sitting, cooking, cleaning, laundering, gardening, yard and maintenance work and other duties commonly associated with the meaning of domestic servant, meet the definition of domestic servant intended by the Act.” Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.
As a result, nannies and other domestic workers (or “servants”) in Wisconsin can face financial hardship from a workplace injury. Because of this, those who perform general household services should attempt to obtain a personal insurance policy for workplace injuries. Household employer should also consider offering worker’s compensation insurance as a benefit, even though they are not legally required to do so. This will undoubtedly attract high-quality employees, and is the ethical thing to do. Include benefits into a written employment agreement, such as a nanny contract, and consult an insurance agent or Workers Compensation lawyer to make sure you have incorporated the appropriate coverage.