02/09/2026
When is 'sleeping on the job' considered working? When is overnight time actually work? Nell Fisher worked as a live-out nanny for Rachael Todd from July 2023 until she resigned in February 2024. Her agreement guaranteed 60 hours a fortnight (up to 80) at $27 an hour, plus a $60 overnight allowance for stays between 7pm and 7am. The Employment Relations Authority later found that those sleepover nights were working hours. Across 30 overnight stays — about 360 hours — she had been underpaid. The Authority ordered $9,720 gross in unpaid wages, plus holiday pay and KiwiSaver, close to $10,000 in total.
This situation applies to caregivers, support workers, boarding staff, live-in help, and anyone who is expected to stay overnight “just in case.” The law does not ask only whether you were asleep, it asks whether you were at the employer’s disposal.
- The legal starting point: “work” is not the same as being awake -
Section 6 of the Minimum Wage Act 1983 says every worker is entitled to payment for their work at not less than the minimum rate. The Act does not define “work.” The courts have filled that gap in a practical way. For example, in the case of Idea Services Ltd v Dickson [2011] NZCA 14, the Court of Appeal confirmed that sleepovers can be work even when the employee is allowed to rest or sleep.
The test is fact-specific and “intensely practical.” Three factors matter, and the more strongly each applies, the more likely the time is work:
- Constraints on the employee’s freedom to do as they please.
- Responsibilities placed on the employee.
- Benefit to the employer of having the person there.
You do not need all three at maximum strength. The question is the overall picture.
Factor one: constraints on freedom
Ask: could the person leave, socialise, drink, lock a door, or treat the night as their own?
In Dickson, a community support worker could not leave the house, could not lock his door (except briefly to dress), could not drink, and needed permission for visitors. He had to stay available to be woken. That was a high level of constraint.
In Ms Fisher’s case, ERA member David G Beck found the restrictions on her freedom were “sufficiently onerous to prevent her from exercising the freedom one would expect if not working (even while resting).” She was staying overnight as part of the job, covering evening routines such as bathing and feeding, and attending the child if they woke. The employer said her father lived at the property and that Ms Fisher stayed for her own convenience to avoid a morning commute. The Authority preferred the view that overnight stays were required. That finding on constraint was decisive.
Contrast a weaker case. In Furniss v Waikanae Beach Motel Ltd, a motel worker lived on site but could leave after hours, have visitors, and treat the motel as home. After-hours tasks were limited and transactional. Those nights were not treated as full working hours in the same way as a care sleepover.
Practical question: If you cannot reasonably leave, cannot plan your own evening, and must stay ready for the child or client, the night is looking like work.
Factor two: responsibilities
Ask: what would happen if you were not there?
Caring for a child overnight — especially sole or primary responsibility — is a serious duty. You are responsible for safety, comfort, night waking, illness, and the household running until morning. That is close to the Dickson and boarding-matron cases, where staff carried ongoing responsibility for vulnerable people even while resting.
Ms Fisher described the role as “a much bigger commitment than I originally signed up for.” A flatmate said she was coming home in tears and worn down. The Authority accepted significant overnight responsibility, not a casual stay for convenience.
Responsibility does not disappear because you hope the child sleeps through. The possibility of being needed, plus the duty to respond, is part of the job.
Factor three: benefit to the employer
Ask: who needed you to be there?
The parent or client gets a clear benefit: they can work, travel, sleep, or be away while someone responsible remains in the house. That benefit is exactly why the arrangement exists. In Dickson, the sleepover was essential to the service running overnight. In a nanny household, overnight cover lets the employer live their life. That points strongly toward work.
Travel with the family, including overseas trips, usually strengthens this factor. The worker is away from home, on the employer’s schedule, and still responsible for the child. Those days and nights are rarely “personal time.”
- A $60 allowance is not the same as paying for the hours -
This is one of the most important lessons in the Fisher case.
The agreement paid $60 a night for 7pm to 7am. That is $5 an hour if treated as 12 hours — well below both the $27 contract rate and the adult minimum wage. The Authority accepted that $60 could be a reasonable payment for availability, but it did not cover the hours actually worked. Once the nights were found to be work, the shortfall had to be paid.
Two further rules sit underneath this:
You cannot contract out of the minimum wage. An agreement that says “overnight is an allowance only” does not override the Minimum Wage Act if the time is work.
You generally cannot “average” a low overnight rate against a higher daytime rate for hourly workers so that some hours fall below the minimum. The courts rejected that approach in the Dickson litigation. Each hour of work must meet the minimum.
Board, meals, or “you can stay the night so you don’t have to drive home” also do not automatically wipe the wage. Any deduction for accommodation is tightly limited by the Minimum Wage Act.
- What the nanny case shows in practice -
Putting the three factors against Ms Fisher’s facts:
- Was she free to leave and treat the night as her own? No — constraints were onerous even while resting
- Did she still have real duties?Yes — evening care and night waking
- Who benefited from her being there?The employer
- Did a flat $60 night rate fix the problem?No — it underpaid the hours found to be work
Result? About 360 overnight hours were ruled as work; totalling backpay to $9,720 plus holiday pay and KiwiSaver
The Authority declined separate claims for unjustified disadvantage and extra distress compensation. The core win was the unpaid work itself. That is typical: sleepover cases are often wage-arrears cases first.
- Situations that often are work -
These arrangements frequently meet the test:
- Overnight care of children, disabled people, or older people where you must stay and respond.
- Sleepovers in community homes, boarding hostels, and similar settings.
- Being the only responsible adult in the house while the employer is at work or away.
- Travelling with the family and remaining on duty overnight.
- “On call in the house” with tight response expectations and no real freedom to leave.
- Situations that may not be full working hours -
Each case turns on its facts, but the following are weaker:
- You live there as your home, can leave freely, have visitors, and only deal with rare, light interruptions.
- True on-call from your own home with no requirement to stay on site.
- Time that is genuinely your own after rostered hours, with no residual duty.
- A genuine visitor stay that is optional and not part of the job.
Even then, any time you are actually called to work must be paid.
- Rights and duties for both sides -
If you employ a nanny, caregiver, or live-in worker:
Write down expected overnight duties. If they must stay and remain responsible, budget for those hours at least at the minimum wage (and at the agreed rate if higher). Keep wage and time records. Do not assume “allowance,” “family member,” or “they slept anyway” solves the legal problem. Review travel days the same way.
If you do this work:
Keep a simple log of nights stayed, what you were expected to do, whether you could leave, and when you were woken. Keep the agreement and messages about hours. A personal grievance or wage claim usually has a tight time limit, so get advice early. You are entitled to holiday pay and KiwiSaver on arrears as well as the missing wages.
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Ngā mihi nui,
Coromandel Workers Council (CWC)
Supporting workers across the Coromandel Peninsula
This is general information about employment rights, not legal advice for your specific situation.
read he full article here: https://www.stuff.co.nz/nz-news/361026231/christchurch-nanny-wins-10k-after-sleepover-nights-found-be-working-hours