Monday, January 21, 2008
Withholding Nanny's Last Paycheck
A client family let their nanny go last fall and did not issue her a paycheck for her last week of work. They called our office for advice on how to handle a questionnaire sent to them by their state's Department of Labor in response to a grievance filed by the nanny.
Client's Story:
Client told me that the nanny was consistently late for work, and that the situation did not improve after they talked to her about it. They found another nanny, and let the first one go on a Friday. They did not pay her for the last week because they wanted the nanny to first return the house and car keys they issued her when she started work. Client claimed they had significant expenses getting the house re-keyed as they were worried the nanny would retaliate.
Nanny's Claim:
She worked the entire week and was let go when the parent's returned from work on Friday with no notice or severance. She called the family and they refused to pay her. She emailed them and they replied they would not pay her until all keys are returned. She filed for unemployment insurance, and the state representative advised her to also file a Wage and Hour complaint. She filed a claim through her state agency for the unpaid wages, with the email as part of the documentation.
Our Advice:
Client, pay the nanny. Absent a written agreement documenting what 'company assets' were provided to her upon employment and their value if not returned at the end of employment (with her signature), the house and car keys cannot legally be used as a reason to withhold her pay. Client was not happy, clearly, but at the end of the day agreed to make the payment to avoid legal entanglements.
The client is also fighting the nanny's unemployment claim. They will loose. Why? There is no documentation of the lateness, or the family's counseling that this is a problem. A classic He Said - She Said situation. The benefit of the doubt will go to the employee 99% of the time.
When you involuntarily separate an employee (fire them) it is a best practice to have the final paycheck calculated and ready for the employee. You could even request that the employee sign a form acknowledging receipt of the last payment. (You cannot force her to sign it, but the employee generally will.) Most states required that the final check be prepared and mailed to the employee no later than 72 hours after the involuntary separation. In my experience, dealing with this immediately allows you to put the entire matter to bed permanently - an emotionally attractive solution all around. Hiring and firing a nanny is both a business and emotional decision. Don't let the emotion part of the arrangement blind you to the possible consequences if you run afoul of employment law.
Client's Story:
Client told me that the nanny was consistently late for work, and that the situation did not improve after they talked to her about it. They found another nanny, and let the first one go on a Friday. They did not pay her for the last week because they wanted the nanny to first return the house and car keys they issued her when she started work. Client claimed they had significant expenses getting the house re-keyed as they were worried the nanny would retaliate.
Nanny's Claim:
She worked the entire week and was let go when the parent's returned from work on Friday with no notice or severance. She called the family and they refused to pay her. She emailed them and they replied they would not pay her until all keys are returned. She filed for unemployment insurance, and the state representative advised her to also file a Wage and Hour complaint. She filed a claim through her state agency for the unpaid wages, with the email as part of the documentation.
Our Advice:
Client, pay the nanny. Absent a written agreement documenting what 'company assets' were provided to her upon employment and their value if not returned at the end of employment (with her signature), the house and car keys cannot legally be used as a reason to withhold her pay. Client was not happy, clearly, but at the end of the day agreed to make the payment to avoid legal entanglements.
The client is also fighting the nanny's unemployment claim. They will loose. Why? There is no documentation of the lateness, or the family's counseling that this is a problem. A classic He Said - She Said situation. The benefit of the doubt will go to the employee 99% of the time.
When you involuntarily separate an employee (fire them) it is a best practice to have the final paycheck calculated and ready for the employee. You could even request that the employee sign a form acknowledging receipt of the last payment. (You cannot force her to sign it, but the employee generally will.) Most states required that the final check be prepared and mailed to the employee no later than 72 hours after the involuntary separation. In my experience, dealing with this immediately allows you to put the entire matter to bed permanently - an emotionally attractive solution all around. Hiring and firing a nanny is both a business and emotional decision. Don't let the emotion part of the arrangement blind you to the possible consequences if you run afoul of employment law.
Labels: nanny final paycheck, nanny involuntary separation, nanny terminated
