FS#8: Complying with Employment Laws in Your Home-Based Day Care Program

Complying with Employment Laws in Your Home-Based Day Care Program

When you employ workers in your day care program, you take on a wide range of responsibilities toward your employees. Like any employer, you must comply with all applicable labor and employment laws.

Wage and Hour Laws

If your business employs workers, federal and New York State laws require you to:

Pay minimum wage and overtime.
Pay your employees at least twice a month.
Keep records concerning the wages you pay to your employees.
Allow one day of rest per calendar week.

Minimum wage: It is against the law to pay workers less than the minimum wage. Minimum wage applies to all employees, including undocumented workers.

Under federal and New York State minimum wage laws, workers must receive at least $7.25 per hour. Since your business is in New York, you must pay your employees at least $7.25 per hour.

Overtime wages: These are wages paid to your employee who works more than 40 hours in one week. You must pay her an overtime rate of one and a half times the regular rate of pay for every hour over 40 hours.

You must also pay your employee an additional hour’s pay (at the minimum wage rate) for every day in which she works more than ten hours per day or works a split shift. A split shift is a work shift divided into two or more working periods in a single day, separated by more than normal periods of time off (such as lunch). For example, a bus driver or train operator may work during the morning rush hour, leave, and then return to work for the evening rush hour.

If an employee shows up for work, she must be paid for at least four hours of work or the number of hours in a regular shift, whichever is less, at the minimum wage.

Do I have to provide overtime pay to my salaried employee?

Generally, a salaried employee (a worker paid for a certain time period instead of an hourly wage) is entitled to overtime pay at the rate of one and a half times the regular rate of pay for every hour she works over 40 hours. Depending on the salary you pay her and the duties she performs, minimum wage and overtime requirements may not apply to her. Certain employees may be exempt from minimum wage and overtime pay requirements if they fall into one of the following categories:

An employee whose main duty is to manage the business for which she works (executive employee)
An employee whose main duty is to perform administrative work that relates directly to the management or general business functions of her employer or the business clients (administrative employee)
An employee who primarily performs work that requires an advanced education beyond high school level (professional employee)

To learn more about which employees may not be covered by minimum wage and overtime pay requirements, visit the United States Department of Labor website: http://www.dol.gov/compliance/ guide/minwage.htm#who.

Can I provide compensatory time to my employee instead of overtime pay?

No. As a non-government employer, it is against the law for you to provide compensatory or “comp.” time instead of overtime pay to your employee.

Why do I have to keep records concerning the wages my business pays?

You must be able to provide any employee with a statement of her gross pay amount, deductions, and take-home pay.
You will need accurate payroll records for at least six years to meet your responsibilities and protect your business under tax and employment laws.

What must a record for an employee show?

Worker’s name, address, and Social Security Number
Wage rate
Hours worked (plus arrival/departure time)
Gross wages
Deductions from gross wages
Net wage paid

If you use a payroll company, find out how long the company keeps these records for your employees, and how you can get copies if you need them.

Can I deduct, or take out, money from my employee’s wages?

No, you may not deduct any money from your employees’ wages when the deductions have not been approved by the employee or do not benefit the employee. Examples of prohibited deductions include penalties for lateness or misconduct.

How often are my employees entitled to breaks?

If an employee works more than 6 hours, she must have at least 30 minutes for lunch, which extends over the noon day meal time (11 am – 2 pm).

If an employee starts work before 11:00 am and she continues to work after 7:00 pm, she must have an additional 20 minutes of break time between 5:00 pm and 7:00 pm.

If an employee starts work between 1:00 pm and 6:00 am and works more than 6 hours, she must have at least 45 minutes for dinner.

If an employee is not paid for meal periods, she cannot be required to do any work during that time.

Anti-Discrimination Laws

You cannot pay your employees different wages on the basis of gender.

Federal, state, and city laws prohibit discrimination on the basis of age, race, creed, color, national origin, sexual orientation, gender, disability, military status, marital status, criminal background, and because someone is an actual or perceived victim of domestic violence, a sex offense, or stalking.

Although many of these laws only apply to employers with at least four workers, all employers should be aware of anti-discrimination laws, even if they have only one employee.

Remember that under day care laws, all operators, employees, substitutes, and volunteers are subject to criminal history review requirements.

Child Labor

Under day care laws, you may not employ anyone under age 18 as a provider, assistant, or alternate assistant in your program. Anyone under age 18 also cannot work as your substitute.

New York laws restrict the employment of minors (children under age 18). In general, children under age 14 may not be employed under any circumstances. Additional requirements apply to the employment of children between ages 14 and 17, including having a work permit.

For more information, contact the New York State Department of Labor at (212) 775-3568, or visit www.labor.state. ny.us.

If you fail to carry out any of your employment law responsibilities, you may face criminal charges and/or civil penalties!

If you have any questions about your responsibilities under the laws described in this fact sheet, call the Child Care Project Hotline at 718-237-5540.

This article was posted March 17, 2010