Don’t Ignore Household Employee Payroll Tax Rules

• Learn how to define a household employee.
• Find out why you should not file a 1099 for household employees.
• Discover the correct procedures for paying household employees.
• Learn about W-2s, payroll taxes, and reporting.
• Find out when you need to pay overtime.
• Learn about hourly pay vs. salary.
• Find out why you should keep household employees on a separate payroll from your business.

Have you hired a domestic worker to provide services in or around your home? Then you probably have a tax liability that you don’t know about – or one that you do know about but are ignoring. Either situation can come back to bite you. When the worker is your household employee, your liability includes both withholding and paying payroll taxes. You must also issue a W-2 after the close of the year.

Sure, it is a lot easier simply to pay your worker in cash and avoid federal and state payroll taxes. Taxes require a lot of paperwork that you may want to avoid. Your domestic worker will likely be fully cooperative with a cash deal because he or she can also avoid paying taxes. But, what if the IRS or your state employment department finds out about these payments? The result could be very unpleasant for you.

How to Define a Household Employee

Not everyone who performs services in or around your home is classified as an employee. For instance, a plumber or electrician who makes repairs in your home will generally be a licensed contractor that provides services to the public at large and not exclusively for you. The government does not classify such contractors as employees.

On the other hand, the IRS has conclusively ruled that nannies, housekeepers, senior caregivers, some gardeners, and various other domestic workers, that work exclusively and directly for a single household (i.e., they do not work for an agency that is providing the services), are employees of the people for whom they work. It makes no difference if you have a written contract with the employee referring to them as a contractor if the facts and circumstances indicate otherwise. Similarly, the number of hours worked and the amount paid is not dispositive.

You are probably thinking, “Wait a minute!” Everyone you know pays in cash. And probably none of them has paid payroll taxes or issued a W-2 for a household employee. This works right up until it doesn't.

If a worker gets injured on your property or if you dismiss the worker under less-than-amicable circumstances, it’s a pretty sure bet that your household employee will be the first one to throw you under the bus by reporting you to the state labor board or by filing for unemployment compensation.

Some individuals try to circumvent the payroll issue by treating a household employee as an independent contractor. Then, they incorrectly issue the household employee a Form 1099-NEC.

Here are the correct actions you should take for domestic employees:

• Obtain a Federal Employer Identification Number (FEIN), which you will use in lieu of your Social Security Number when filing the required reporting forms. Note: If, as the owner of a sole proprietorship business, you already have a FEIN, you should use that number instead of requesting a separate one as a household employer.
• Obtain a state ID number for unemployment insurance and state tax withholdings.
• Withhold Social Security and Medicare taxes from the employee’s pay if it exceeds the annual threshold ($2,400 for 2022).
• Withhold income tax from the employee if requested by the worker and if you agree to do so.
• File state employment tax returns as required – generally quarterly (although beware that some states require monthly returns) – and make the required deposits for state employment taxes.
• Prepare a W-2 for the employee and a W-3 transmittal; file them by the end of January.
• File Schedule H with your federal individual income tax return and pay all the federal payroll and withholding taxes (i.e., the federal taxes that you withheld from the employee’s pay, plus your matching share of Social Security and Medicare taxes plus federal unemployment tax, which is entirely your responsibility). Limited exception: If you operate a sole proprietorship with employees, you may include the payroll taxes of your household workers with those of the business’s employees, but you cannot take a business deduction for those taxes. Generally, it is better to keep the personal and business reporting separate.

Additional Issues to Consider

Overtime

Under the Fair Labor Standards Act, domestic employees are nonexempt workers and are entitled to overtime pay after working 40 hours in a week. Live-in employees are an exception to this rule in most states.

Hourly Pay or Salary

It is generally required that nonexempt employees be hourly employees.

Separate Payrolls

If you own a business with a payroll, you may be tempted to include your household employees on the company’s payroll. The payments to the household employees are personal expenses, however, and are not allowable deductions for a business. Thus, you must maintain a separate payroll for household employees. In other words, you must use personal funds to pay household workers instead of paying them from a business account. As discussed above, you can deposit the payroll taxes for the household employee with your business payroll taxes.

Eligibility to Work in the U.S.

It is illegal to knowingly hire or continue to employ an alien who is not legally eligible to work in the U.S. When hiring a household employee who works on a regular basis, you and the employee each must complete Form I-9 (Employment Eligibility Verification). You will need to examine the documents that the employee presents to establish the employee’s identity and employment eligibility.

Other Issues

Special situations not covered in this overview include how to handle workers hired through an agency, how to gross up wages if you choose to pay an employee’s share of Social Security and Medicare taxes, and how to treat noncash wages.

Would you like assistance with your household employee tax and reporting requirements or with any special issues that apply to your state? Call Fiducial at 1-866-FIDUCIAL or make an appointment at one of our office locations to discuss your situation.

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