What you leave out of your nanny contract is just as important as what you include. Here’s my list of top things to avoid.
Nanny positions often have a year long minimum commitment. However, that is a professional commitment, not a legal one. Most nannie live in “at will” states so they can be fired or quit at any time, for any reason. That doesn’t change with a nanny contract. Nannies aren’t guaranteed a job or guarantee to stay in a job for a year when they accept a position, which is what an end date implies. That doesn’t mean a nanny can’t protect themselves from an at will firing. A good contract will provide a clear severance clause so if the nanny is fired without notice, they’ll receive a payout.
INDEPENDENT CONTRACTOR OR 1099
Nannies are not independent contractors and should not receive a 1099 at the end of the year. Don’t take my word for it, the IRS is crystal clear on this point in Publication 926. Contracts that list them as independent contractors are getting it wrong from the get-go and by default, this makes many other sections of the contract wrong as well.
NANNY AGREES TO NOT FILE…
I’m seeing more and more contracts that are asking for reassurance that a nanny won’t file for worker’s compensation, unemployment, a wage claim, or any kind of lawsuit. An employer cannot require a nanny to sign away their rights in a nanny contract. No matter what a contract says, a nanny has the right to file for worker’s compensation if they’re hurt on the job, the right to file for unemployment if they’re fired, the right to file a wage claim if they’re the victim of wage theft, and the right to civilly sue their employer for a variety of reasons. The best way to forgo the need for this phrase is for employers to carry worker’s compensation insurance even if it’s not required in their state, pay legally so they’re paying into state and federal unemployment, pay their nanny correctly to avoid a wage claim, make sure their car or the nanny’s car (if the nanny is using their car for work) is adequately insured, reimburse nanny’s for miles driven while on duty, and overall provide a safe, discrimination free work environment. That’s a long list but the good news is many employers are already doing those things.
MUTUALLY AGREED UPON
This phrase is great in theory but a huge problem waiting to happen in practice. What happens if the nanny and parents can’t agree on an issue? They need an answer to move forward so whose preference wins out? In almost all cases, the employer’s preference wins out because they’re the employer. As much as we work to have an equitable employment relationship, there is a hierarchy in every workplace. Your better choice is to use collaborative language to show your intention of working together to find a shared solution to an issue but if that doesn’t happen, list who gets to make the final decision.
As in a list of responsibilities plus “other tasks as needed” or the schedule plus “additional hours as needed” or “flexibility as needed”. As needed is the kiss of death to a nanny’s job description. It means the contract lays out the basic things required however the employer can add or change things when and how much they want. Often what is throw in is not child-related and it quickly becomes an issue in the employment relationship even though it’s allowed according to the contract.
I feel a bit more of an explanation on this one is required.
Many employers add this phrase because they’re afraid they won’t be able to add tasks as the job description naturally changes (e.g. child starts t-ball and now the nanny needs to pack individual and team snacks and transport child to and from practices and games, the playroom is out of control with toys and the parents want to add rotating the toys to the nanny’s list of duties) or they genuinely need flexibility in their schedule and want to make that clear from the beginning. So what’s the alternative to “as needed” in those cases?
When it comes to additional tasks, it’s important both the parents and the nanny understand the standard nanny job description includes hands-on care and all responsibilities relating to the care of the child. An individual nanny doesn’t take on all those tasks, however those tasks are what parents choose from when building their job description. So when it comes to adding a new task that isn’t explicitly listed in the contract, that task can be added without issue if it’s a child-related responsibility and the nanny has time for, is within their skill set, and doesn’t substantially increase their workload. For example, rotating the toys every month is a task that can be easily added to a nanny’s to do list. Moving from frozen or boxed, easy to prepare meals to all fresh, made from scratch, gourmet meals is something that should be discussed since it’s time-consuming (they may not have time for it), requires a high level of cooking ability (they may not have the skill set needed to do it), and will create a lot more work (they may not be willing to substantially increase their workload). The nanny may or may not agree to take the additional task on and if they do, may require additional pay.
For families that need scheduling flexibility, you can avoid the “as needed” phrase by building the needed flexibility into the nanny’s schedule while detailing parameters to ensure the nanny’s scheduling needs are met too.
A word of caution here to nannies that refuse to take on any additional duties, ever. Working in a private home requires flexibility. It’s not the same as working in a daycare or preschool where your job description is set. (Although even in those workplaces, employees are asked to pitch in when needed.) The child you care for is growing and their needs are changing. To be successful as a nanny, you have to reasonably adapt to the child’s and family’s current needs. That’s not being taken advantage of; it’s part of the job.
I hope this helps you avoid contract conflicts. If you’re looking for a comprehensive contract that doesn’t include any of these things, check out the A to Z Nanny Contract.
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