Legal Responsibilities when Hiring a Nanny

It can come as quite a surprise to parents that four Government agencies require parents to comply with regulations governing nanny employment.   Parents should be aware of these regulations and make decisions about how you will handle your responsibilities to these agencies before starting a nanny search.   Your decisions will affect the pool of candidates available and the cost of care. The Four Government Agencies and Regulations Governing Nanny Employment are:

  1. Department of Homeland Security and Immigration Reform and Control Act
  2. Internal Revenue Service
  3. Department of Labor
  4. Department of Motor Vehicles
department of homeland security and immigration reform and control act

Parents hiring a Nanny are required to comply with the Department of Homeland Security (DHS) regulations and the 1986 the Immigration Reform and Control Act (IRCA) and check to be certain their Nanny has documentation to work legally in the U.S. Section 1324a of the IRCA prohibits employers from hiring an employee “knowing the (employee) is an unauthorized alien.” This extends to parents hiring a Nanny. The DHS has listed the acceptable documents on Form I-9. Parents must verify the Nanny is an authorized alien by examining these government-approved documents and listing them on Form I-9 to establish their Nanny’s identity and authorization to work. The list of acceptable documents varies but includes a passport, a resident alien card, Social Security Card and driver’s license. Parents are expected to verify that the documents reasonably appear genuine and to retain Form I-9 in the event the government decides to inspect it. Failure to comply can result in criminal sanctions, civil penalties or fines.

There are considerable challenges for parents attempting to comply with the IRCA. First there is the practical problem of identifying fraudulent documentation. The counterfeit document industry is quite sophisticated and thriving. For $120 a Nanny can get a Social Security Number that is fraudulent or stolen information, but not necessarily false information. The Social Security Number may have been stolen from someone else or have belonged to someone that is deceased.

Another challenge is due to the Nanny market being without Government regulation bring many undocumented workers to the market. To increase the pool of available applicants, some parents forego documentation as a condition of employment.

Added to the decision about whether to comply with DHS requirements is the lack of oversight by immigration officials. Following the passage of the IRCA, the Immigration and Naturalization Service (INS) employed only 350 people to oversee compliance and enforcement. Unless a parent ran for public office or worked in a position subject to public scrutiny, most parents fell under the radar screen of the INS and DHS.

Recently the Social Security Administration (SSA) has jumped onto the bandwagon to assist the INS in overseeing compliance and enforcement. The SSA has sent “no-match” letters to large corporate employers when the W-2 forms for their employee Social Security Numbers do not match their SSA records. There is considerable lobbying by various interest groups to halt this practice.

For the majority of parents hiring a non-documented Nanny, the risk comes when their Nanny returns to her country of origin for vacation or a family emergency. It can be very difficult, if not impossible, for her to return to the U.S. if she has violated the terms of her previous entry. Parents are left without childcare and children are left without the opportunity to say their good-bye to someone who has cared for them.

It is very important that you make a decision on whether you would hire a candidate without documentation to work legally in the U.S. If you decide to hire only documented candidates, this must be part of every announcement posted and part of your pre-screening discussion with all candidates.