A nanny sought back wages from her employer, alleging that her weekly salary came to less than $4 per hour.

What happened. In July 2004, “Gina” and “Roger” hired “April” to care for their young son. April requested a salary of $350 per week. Roger questioned why an “illegal” should be charging so much and mentioned that he “was with the government,” but agreed to the salary, and later increased it to $400.

April dressed their son, cooked his breakfast and prepared him for the day, cooked his dinner in the evening and put him to bed. She also occasionally babysat on weekends. Eventually April moved in, staying with the family from Sunday evenings through Friday evenings.

In March 2010, April filed a lawsuit seeking back pay plus double damages for willful violations of the Fair Labor Standards Act (FLSA), claiming she had worked an average of 100 hours per week for more than 2 years at $3.50 per hour and 75 hours per week from October 2008 through March 2010 at $4 per hour. Roger and Gina testified that April had worked only 38 hours per week on average, having no duties after their son left for school or after he went to bed, and added that they paid many of April’s expenses. April said that she worked continually doing household errands and chores.

Roger testified that he had “an idea of what minimum wage was” and thought that it “might have been about $6 per hour,” and that he believed they were paying April “way above the minimum wage.” A jury found for April and awarded $33,025 in back wages. The district court declined to award punitive damages, however, finding that the couple had “acted in good faith” and that the FLSA did not require them to “go and investigate” minimum wage requirements further. April appealed.

What the court said. The 11th Circuit Court of Appeals, which covers Alabama, Florida, and Georgia, overturned the lower court’s ruling, finding that “[a]n employer willfully violates the Act if he should inquire as to whether his actions violate the Act, but fails to do so.” The court found that Roger and Gina “knew of the hourly wage laws, but failed to investigate whether they had complied with those laws.”

In addition, the couple “did not sign a contract with [April], did not record her working hours, and paid her in cash,” and Roger “made threatening comments about her alien status and his work for the government.” The court sent the case back to a jury to decide whether the couple’s FLSA violations were willful and whether to award punitive damages. Davila v. Menendez, 11th Cir., No. 12-11049 (6/10/2013).

Point to remember. Paying anyone to provide services without providing a written contract and documenting wages and hours worked is an invitation to disaster.