By: Jinal Sharma, Legal Intern
Earlier this month, in Capron v. Attorney General of Massachusetts, the Court of Appeals for the First Circuit rejected an au pair agency’s challenge to Massachusetts labor laws, finding that Massachusetts wage and hour laws apply to au pairs. Under the First Circuit’s ruling, that means that au pairs in Massachusetts are now entitled to workplace protections, including minimum wage and overtime pay.
Under the First Circuit’s ruling, Massachusetts will require employers to comply with the Domestic Worker Bill of Rights with respect to au pairs. This means au pairs will be paid minimum wage, which in Massachusetts is rising to $12.75 an hour starting January 1, 2020. An au pair will be considered to be “working” any hours the au pair is required to be on the employer’s premises to provide childcare services. Meal periods, rest periods, and sleep periods are not considered as hours worked only if the au pair is free to leave the premises at their sole discretion. Employers will also be required to pay time-and-a-half for any hours worked over 40 hours/week and to keep records of au pair hours worked. Additionally, au pairs will be entitled to sick leave, worker’s compensation, and notice of why and when the employer might enter the au pair’s living space.
In a state with the highest child care costs in the country, the increased cost of an au pair under the new ruling will have a significant impact on those families who employ au pairs, some of whom have already raised concerns about whether they will be able to keep the au pairs they currently employ or employ au pairs in the future. The decision is important, however, for its recognition of the susceptibility of the au pair program to labor exploitation and its attempt to remedy that problem. The decision provides for a more uniform understanding of the concept of childcare work in the Commonwealth; ensuring that au pairs are treated the same under the law as any other childcare provider when it comes to wages and workplace protections. As the Court noted, if Massachusetts laws do not apply to au pairs, the U.S. would have created a system that “would authorize foreign nationals to be paid less than Americans performing similar work.” Massachusetts has determined as a matter of policy that every worker should be paid at least $12/hour for their work, not the $4.35/hour that employers are required to pay au pairs under the federal program. The First Circuit’s decision ensures that this protection against exploitative labor practices applies to foreign nationals providing domestic labor just as it does to all other employees in Massachusetts.
Au Pair programs, or “cultural exchange” programs provide foreign individuals with a special visa that allows them to provide in-home childcare services in exchange for pursuing a post-secondary degree. Participants in this program receive “J-1” visas, which allow foreign nationals to come to the United States for “teaching, instructing, lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training.” The State Department has regulations governing how much an au pair can work: a maximum of 45 hours a week or 10 hours per day. Pursuant to State Department rules, host families must pay $500 towards au pair’s education costs, provide room and board, and a minimum weekly stipend of just under $200. In the past, legislation that regulated this industry and the “cultural exchange” programs was often vague and inconsistent, leading to concerns that au pairs might be exploited.
How Did we Get Here?
A private placement agency and individuals involved in the Au Pair Program based out of Cambridge filed this action in 2016 against the Massachusetts Attorney General, seeking a declaratory judgment. The plaintiffs asked the court to declare that the federal Au Pair Program implicitly preempted Massachusetts law, and thus that Massachusetts au pair agencies and host families did not need to comply with Massachusetts wage and employment laws. The U.S. District Court originally dismissed the complaint and denied plaintiffs’ motion for reconsideration for leave to amend.
The plaintiffs appealed. To the Court of Appeals they argued that because there are detailed regulations governing the Au Pair program, the federal government has demonstrated an intent to “occupy the field” of regulation of au pairs, and thus the federal laws and regulations preempt any state laws that might otherwise apply to au pairs. The First Circuit, however, found that the relevant State Department Regulations were not comprehensive enough to show that Congress intended to displace state law when it passed laws related to au pairs.
The plaintiffs also argued that compliance with Massachusetts wage and hour laws would conflict with the specific purposes and objections that underlie the federal au pair program. They argued that the original intent of this program was a uniform system of regulations and compensation for host families and participants of the au pair program across the country. The Court, however, did not find that plaintiff’s arguments against state law compliance showed conflict with the federal intent, noting that the federal regulations the plaintiffs pointed to establish a floor, not a ceiling, for what an au pair can be paid.
What are the Next Steps?
It remains unclear whether employers will be liable for back wages for au pairs who have worked in Massachusetts but not been paid in conformance with Massachusetts wage and hour laws. The Attorney General’s office has made clear that its priority is ensuring that au pair agencies and employers bring their programs into compliance with Massachusetts laws, and stated that “at this time” it does not plan to enforce the Domestic Worker Bill of Rights or wage and hour laws against host families. The AG notes on its website, however, that it does not control private litigation. It remains to be seen if any au pairs will bring claims for unpaid wages or other labor law violations, and if they do, whether courts will determine that employers are liable for back wages for au pairs they employed before the Capron decision.
If you believe your employer has not complied with Massachusetts wage & hour or other employment laws, please call us at (617) 742-6020.