The Unspoken Employment Contract with Your Babysitter
By Ted Wills
The New York Times Magazine’s resident ethicist, Randy Cohen, recently gave some legal advice about an employment contract between parents and a babysitter. “As an ethical and (as I, a nonlawyer, understand it) a legal matter, the oral agreement she made constitutes a contract, albeit unwritten.” Mr. Cohen is not a lawyer, but I am a law student and he would be pleased to know that his legal conclusion is almost correct.
Mr. Cohen was responding to a letter from a concerned father in Tacoma, Washington. When they originally negotiated the terms of the babysitting agreement, the father and his wife insisted that the babysitter commit to baby-sit two days a week until the end of the school year. She agreed, though nothing was put in writing. Then the father lost his job and no longer needed the babysitter. The father wanted to lay the babysitter off. His wife felt that they must pay the babysitter through the end of the school year. The husband wrote to Mr. Cohen asking his advice, quoted above.
Mr. Cohen’s basic conclusion about the existence of a contract is correct. Most types of contracts, including employment contracts, do not need to be written down in order to be legally enforceable. In the State of Washington (and likely in all U.S. jurisdictions) in order for a court to find a legally binding contract, there must exist (1) competent parties; (2) a legal subject matter; (3) an offer; (4) an acceptance; (5) mutual assent; and (6) a valuable consideration. Our babysitter situation seems to satisfy the requirements for a legally binding contract. Element one, “competence,” speaks to the mental competence of the contracting parties, which we can assume. In some situations a minor might be considered legally incompetent. But in Washington, if so, this would give only the babysitter the right to void the contract. The parents would still be on the hook. Element two is satisfied. Unlike a contract to purchase illicit drugs, a contract for babysitting services is undoubtedly legal. Elements three, four, and five have been satisfied. Because the babysitting relationship had commenced, the parents and babysitter mutually assented to the contract terms: the babysitter to baby-sit throughout the school year for two days a week and the parents to pay the babysitter for her services. Element six, “a valuable consideration,” is legalese for something of value. In this case, the parents bargained for babysitting services and the babysitter bargained for money.
Despite Mr. Cohen’s correct conclusion about the formation of a contract, his legal advice is ultimately incorrect. Cohen implies that the parents are legally obligated to pay the babysitter because when they negotiated the terms, they did not propose an out for “emergencies, whether medical, economic, or that familiar paring of the theological and the meteorogical: come hell or high water.” If a contract is silent on a particular subject, the law provides default rules called gap fillers. The gap fillers add what the contract does not address. Mr. Cohen’s legal advice overlooks the crucial gap filler in Washington employment law: the “terminable-at-will” rule. Unless the contract expressly says otherwise, in Washington an employer may fire an employee and an employee may quit whenever she sees fit.
So if the Tacoma father does not succumb to Mr. Cohen’s ethical guilt trip, he can rest easy. Because it is not likely that the parents and babysitter negotiated a termination clause in their oral contract, the “terminable-at-will” rule applies. There is no legal impediment to laying-off the babysitter.