Today we have a guest blog from our colleagues Nathan Hammons and Charlie
Domer of Wisconsin. While this post contains many references to Wisconsin law, we think it is a valuable examination of the topic of domestic servants as employees who are protected by workers’ compensation.
Most families in Wisconsin have hired a baby-sitter or nanny to watch their children. The pay generally is in cash for a defined period of time. Does the situation create an employer-employee relationship, entitling an injured baby-sitter to worker’s compensation benefits?
Under the Worker’s Compensation Act, most employers in the state are required to provide worker’s compensation coverage for their employees. Employers of ‘domestic servants’, however, are completely exempt from the requirement. (Wis. Stat. §102.07(4)(a)1.) Unfortunately, neither the Act or Wisconsin courts provide a definition. So, what exactly is a domestic servant?
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.
The name ‘domestic servant’ is antiquated. It brings up old images of butlers, maids, and other people toiling away in the mansions of royalty and the wealthy. Indeed, search Wikipedia for ‘domestic servant’ and you’ll be directed to ‘domestic worker’, the modern term and one that doesn’t imply inequality in the workplace. 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.
Consequently, nannies and other “domestic servants” in Wisconsin could face financial hardship or ruin from workplace injuries. For that reason, if you perform general household services in a private home in Wisconsin, try to obtain a personal insurance policy for workplace injuries. If you’re a household employer, consider providing worker’s compensation insurance as a job benefit, even though you’re not legally required to do so. It will help attract quality employees, and it’s also the right thing to do. Incorporate the benefit into a written employment agreement, such as a nanny contract, and work with an insurance agent to make sure the right amount of coverage is in place.
Note: home care providers are treated differently from domestic servants. Stay tuned for a future
Nathan Hammons is the founder and principal attorney of the Law Office of Nathaniel S. Hammons in Milwaukee, Wisconsin. He’s also the creator of MyNannyContract.com, a website providing parents with a professionally written nanny contract and information about the legal issues of nanny care.