Request By:
Cynthia A. Cecil
Legal Services Program
418 Main Street
Shelbyville, Kentucky 40065
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
We have previously provided you with a copy of OAG 78-699 which deals with the Kentucky minimum wage law as it affects babysitting services. You state that despite that opinion you have a few additional questions. By telephone, you indicated that you work with the Council for Retarded Citizens in developing what is basically a babysitting service for handicapped children which is funded 75 percent by developmental disability funds and 25 percent matching funds or in-kind services by the Council for Retarded Citizens. You state that where possible this babysitting will occur in the home of the handicapped child with payment to be made directly and totally by the family of the child and we presume, ostensibly, that the family will be refunded monies from the Council for Retarded Citizens. You ask three basic questions:
"1. There may be times when for various reasons the babysitting takes place in the babysitter's home rather than the employer's home. In this situation is the KRS 337.010(2)(a)(vii) exclusion available?"
Answer: Where the babysitting takes place in the babysitter's home rather than the employer's, the exclusion does not apply because KRS 337.010(2)(a) defines "employe" as excluding (vii) "any individual employed as a babysitter in employer's home. . . ." (Emphasis supplied.) Where the babysitting takes place in the babysitter's home, the babysitter becomes an independent contractor of a business and, therefore, would fall under the retail service situation. As long as the babysitter does not have gross sales of $95,000 per year, the person would not have to be paid the state minimum wage. Thus, under question (1), it is doubtful that the babysitter would have to be paid the minimum wage where the babysitting takes place in the babysitter's home.
"2. The Council has developed its role to be that of a referral agency or registry rather than actual service provider. However, some of the families, who are unable to afford the services, will be eligible for subsidies for part or all of the cost from the Council. The family always retains the ultimate decision to accept or reject the proposed sitter and to set the terms of service within reason (i.e. there might be a limit on the number of hours of sitting for which the Council will subsidize an individual family for a calendar quarter). The Council will not profit from the babysitting fees under any circumstances. Does the action by the Council in offering subsidies constitute the type of involvement and control described in 803 KAR 1: 005 § 4?"
Answer: The fact that the Council offers subsidies to the family of the retarded child does not make the Council an employer as such. Merely refunding monies to a person would not create an employer-employee relationship. There must be control of the work procedure, the time of employment, and many other factors before there can be such a relationship. Therefore, the answer to question (2) is "no."
"3. The Council intends to require prospective babysitters to participate in twelve hours of training as a prerequisite for inclusion in the registry. Is there any problem caused by requiring such training for which the prospective babysitters will neither be charged tuition nor paid wages?"
Answer: Where the prospective babysitter is placed in training before inclusion in the registry, we would not consider that an employment situation but a student-teacher situation. There may be a different situation where the babysitter is already employed and then placed in training. But, in the absence of the latter procedure, the training period does not constitute employment subject to the state minimum wage law.