The United States Court of Appeals for the First Circuit recently upheld a lower court’s finding that minimum wage laws apply to au pairs. Specifically, the Court held that federal regulations establishing minimum wage requirements for au pairs traveling to the United States to provide childcare did not preempt a Massachusetts law that extends protections to such domestic workers.
Among other requirements, the Massachusetts law at issue requires domestic workers to receive at least minimum wage and overtime, as well as rest breaks and opportunities to contact their families. Cultural Care Inc., an au pair agency, sued the office of the Massachusetts Attorney General, arguing the state law was preempted by U.S. Department of State regulations that required host families to provide room and board to their au pair in addition to a $195 per week stipend. In challenging the state law, Cultural Care argued that requiring host families to comply with the Massachusetts law would discourage families from participating in au pair programs and inevitably frustrate the ability of the program to continue.
A unanimous three-judge panel rejected this argument, finding that the state law does not interfere with the program’s goal of promoting cultural exchange. The Court of Appeals also rejected Cultural Care’s assertion that au pairs are more akin to exchange students than employees under the law. In doing so, the Court of Appeals noted that au pairs are employees of their host families, not merely visitors or guests. “It is hardly evident that a federal foreign affairs interest in creating a friendly and cooperative spirit with other nations is advanced by (allowing) foreign nationals to be paid less than Americans performing similar work,” Circuit Judge David Barron wrote.
Absent any express preemption by the State Department, which the Court did not find, state wage laws applied to au pairs.
While Cultural Care and other au pair agencies continue fighting this issue on the east coast, local families and employers engaged in the au pair industry should take note at what appears to be a changing landscape for adequately compensating au pairs. As the First Circuit’s holding suggests, courts going forward may be more inclined to view au pairs as employees entitled to minimum wage and overtime requirements.