The current controversy over President-elect Bush's nomination of Linda Chavez for Labor Secretary brings the issue of employment laws for household workers back into the spotlight again. The controversy centers on a Guatemalan woman, Marta Mercado, who, in 1993, was in the country illegally, living in Chavez' home. Mercado admits that she performed chores for Chavez, but both women deny that there was an employment relationship. This is reminiscent of the "nanny gate" controversy that surrounded Clinton nominee for Attorney General, Zoe Baird. Baird withdrew from the nomination after facing harsh criticism for allegedly hiring an illegal immigrant as a nanny and failing to pay the employer's share of Social Security taxes. The media spotlight on the Chavez nomination is once again bringing up questions about the application of employment laws to domestic workers even while there are still questions about whether Mercado might have been employed by Chavez.

Some of the laws that are brought to bear on this type of situation are the Immigration Reform and Control Act (IRCA), The Fair Labor Standards Act (FLSA), and Federal tax laws. But before any of these laws would apply, the threshold question is whether or not there was an employment relationship. The answer to this question may well differ when applying different laws. For example, under the Immigration Reform and Control Act, "employment does not include casual employment of individuals who provide domestic service in a private home that is sporadic, irregular or intermittent." However, according to the Department of Labor "the employer-employee relationship under the FLSA is tested by 'economic reality' rather than 'technical concepts.'"

Looking at the facts of a particular situation doesn't necessarily make the determination any easier. To some, the relationship between Chavez and Mercado appears to be one in which domestic labor was performed in exchange for room and board and periodic cash payments. Others see the relationship as one in which Chavez helped a person in need, providing her with a place to live and money when she needed it. Mercado, the grateful guest, performed household chores on occasion as a way of saying thanks. That is the way that Chavez and Mercado characterize their relationship.

The facts aren't so murky in every situation, though. Suppose you hire a person to do domestic work as needed. Sometimes you need help twice a week. Sometimes you don't need help for three weeks. You pay the person four dollars per hour and over the course of a year you've paid them two thousand dollars. You don't know whether the person is authorized to work in the United States and you haven't paid any taxes for them to the IRS. These facts could describe a lot of situations and they look very much like an employment relationship. For one thing, money is being paid for the amount of time the person spends in service to you, although you could still have an employment relationship even if that weren't the case. In this situation, you are probably exempt from the Immigration Reform and Control Act due to the "sporadic, irregular or intermittent" nature of your arrangement. However, the Fair Labor Standards Act might apply, which would mean that you should have been paying minimum wage, which is currently $5.15 per hour. And, because you paid more than $1,200 to the person ($1,300 in 2001), you should have withheld and paid Social Security and Medicare taxes to the IRS.

You probably don't have to worry about the neighborhood kid who baby-sits for you occasionally. But the more regular your relationship, the more formal, and the more time and money involved, the more you need to be concerned about complying with employment laws. Go to our Employment page for more information on employment laws.