Hey, there! Log in / Register
Au pair sues for back pay after court rules au pairs have to be paid state minimum wage
By adamg on Fri, 01/31/2020 - 10:12am
An au pair who worked in Middlesex County is seeking at least $10 million for herself and roughly 500 other au pairs in a suit against the California concern that brought them to Massachusetts, now that a federal court has upheld the legality of a Massachusetts law that requires au pairs earn at least the state minimum wage.
Silvia Juliana Forero Muñoz initially filed her suit on Jan. 9 in Middlesex Superior Court, but the agency, AuPairCare of San Francisco, this week had the case moved to federal court in Boston, because of the size of the demand and potential class and because Forero Muñoz are in different states.
Last month, a federal appeals court in Boston upheld a determination by the state Attorney General's office that au pairs have to be paid at least the state minimum wage, which went to $12.75 an hour on Jan. 1, rather than the $7.25 an hour set by the federal program under which American families can hire foreign au pairs. The state regulation also requires sleep and even meal time to be included as hours in many cases.
The federal regulations let families discount that $7.25 by 40% to pay for the room and board they provide, according to the suit.
in her suit, Forero Muñoz argues the company should have known the jig was up and started requiring families to pay au pairs more long ago, because the Massachusetts law went into effect in 2015 - even if it was tied up in court until last month - and because the company and its competitors last year agreed to pay a total of $65 million to settle a similar lawsuit in Colorado.
Despite knowing for years that au pairs in Massachusetts were required to be paid Massachusetts wages, APC repeatedly told au pairs that they were only entitled to be paid, and host families they were only required to pay, the minimum federal stipend of $195.75 per week. APC never paid its au pairs the required Massachusetts wages. Defendants were at all times the au pairs' employer and Defendants are responsible for the au pairs' unpaid wages.
In addition to back pay, the suit demands treble damages, interest and attorney's fees.
Complete complaint (2.1M PDF).
Topics:
Ad:
Support Universal Hub
Help keep Universal Hub going. If you like what we're up to and want to help out, please consider a (completely non-deductible) contribution.
Comments
I am an au pair
I am an au pair
Not a great career
I take care of your brat
Treated like a mat
My pay is not very fair
Angency is chairing $11,000
Agencies are the issue. They charge families 9000 and the aupairs 2000. They don't do anything to help aupairs or families. Most families would be happy to pay more but the greedy agencies are in the way. The lawsuits want to pit families and aupairs against eachother.
If you hate it so much, why
If you hate it so much, why don’t you quit and go home? Nobody forced you to come here to work as an au pair and nobody is forcing you to stay.
Nobody forced you to have kids
You have no right to exploit others because the decision you made to bring kids into the world came with a cost you didn't like.
If you don't like work why
If you don't like work why don't you just not work?
That's a nice fantasy...
Au Pair
Really? It's not a career. It is a cultural exchange. Maybe you had a bad family, but don't lump the whole program in with your bad experience. Our first Aupair when our 8 year old daughter was one, is still family. As are all the girls who lived in our home over the last 7 years.
She is still family?
Can she count on you to send her to college?
Such an overused euphemism.
Cultural exchange =
Changing dirty diapers
Harassment by household husbands
Being on the clock 24 x 7 and being paid pennies
Sure.... welcome to American culture
You can't even find a babysitter for that cheap.
Shame on them! Happy to hear they are winning their case. How could people be so cheap about child care- not to mention foreign off-sourcing it for cheap. "Let's pretend everything is happy and we're providing a lovely home for our exchange student." If you were being paid crap to care for someone's children, how much would that translate into depression and poor care?
What?
How is room and board and food on top of payment "cheap"? Nobody forced them to become an au pair, but seems like most parties found it to be a win-win for quite a while. The only thing cheap about it is how it is a way to afford to visit another nation as a young person.
"Foreign off-sourcing it for cheap" is also morally bankrupt. People coming from another nation and raising their productivity immensely to huge benefit of the host country's citizens and their own situation is a good thing. Immigration is a net positive, we desperately need it for healthcare and many other protected professions (including parental assistance). You are not some magical arbiter of what is a fair or unfair trade. See why the restaurant profession tends to oppose changing their wage structure.
But yeah, let's just keep raising the costs of everything in the name of progressive sounding yet totally detrimental policies, and ensure in the long run that only the wealthy can afford kids around here anymore.
Nobody forced them to become
"nobody forced you to become a waiter/coal miner/factory worker/janitor/etc" is a great way to express a view of the world where everyone has all the options and privilege you do. Why don't these people just pull themselves up by their bootstraps and choose to be biotech engineers instead?
Gotta make sure we have a lower class to keep exploiting! It's the only way I can maintain my middle-class status!
Exploited?
Again, you are not the supreme arbiter of what is an acceptable agreement for someone or not. Get off your high horse making assumptions for other people's situation and agency.
People coming from low wage places, or being compensated with a mix of benefits should not be presumed to be exploited when they're making upward moves.
The exploitation is when people far detached start telling everyone what has to be and then those people lose the work or opportunity entirely.
You make a foolish assumption when...
... you assume that writer is “far detached”.
It is exploitation
The only reason these people are recruited as aupairs is that they will work 45 hours for $195 per week. They are prevented from getting a competitive rate for their work because their visa is conditional on their AuPair contract. The going rate for live in child care in Massachusetts is $17 per hour. The people of Massachusetts as a whole do not benefit from importing low paid labor. This is an example of special laws for special people. And the AG did not presume they were being exploited, the AG just presumed to enforce the state wage laws.
you are not the supreme
Sure, I'm not, but the government very literally is that. Not allowing exploitative agreements that people who might otherwise be desperate are willing to accept is pretty a pretty basic functioning of labor law.
I don't think "as long as it's technically better than the worst thing I can imagine" is exactly the high bar you imagine it to be. You can still exploit someone a little less than they might be exploited elsewhere and still be exploiting them.
Do you understand that
Do you understand that AuPairs are excited and happy to have this experience? This isn't an employment experience for them. They are looking for a cultural experience. Most are here for a year between high school and university. We aren't talking about a population of oppressed immigrants.
The rationalizations ...
... have no bounds. LOL!
Ah yes
Whenever I changed my kids stinky diapers, I was very grateful for the cultural experience!
Not to mention cleaning the house never made me feel so joyously American!
"Progressive" policies
Since when did it become "progressive" to follow the rule of law? I mean, I realize we've been shown that the president can do anything he wants, but in Massachusetts most of us peons have to follow the law, even staffing agencies.
Laws
I'm not a parent but know a few people who hired au pairs so they could keep working. They aren't millionaires and they aren't legal/tax/hr experts who even considered they might be underpaying. In several of these cases it's a single parent. In all cases it's someone with a good but middle class job.
They treated their au pairs kindly and the wage was agreed to by both parties before they started working. They didn't think (or know to think) about the state wage laws. Perhaps they were foolish but they weren't looking to screw anyone over. Had they needed to pay minimum wage 24/7 they wouldn't have been able to afford the au pairs.
I support au pairs getting paid reasonably. However, if some parents suddenly find themselves will huge bills for back wages they never expected it could bankrupt them. It's wrong to think everyone who hires a au pair is a heartless millionaire looking to scam a young immigrant.
Just a FYI. Glad it's not a problem I need to deal with.
Move forward, not back
I agree that most of the people who entered these arrangements - on both sides - did so with their eyes open and were reasonably satisfied with the outcome. If the ruling is that they need to be paid at least minimum wage, that's fair and that's how it should be going forward. This case smacks of lawyers sensing a good payday, rather than many former au pairs suddenly seeking "justice".
The lawsuit is against the Au Pair agency
And if you have been paying attention, you would know that these agencies have been charging families and AuPairs thousands of dollars each to arrange these visas. There was one story where an AuPair had to work unpaid 20 hours per week in a day care for a year just to qualify to apply. These agencies lined their pockets with double charging both AuPair and families for travel costs and other fees. There is a lot of injustice to remedy here.
FWIW
The people who I know who hired the au pairs didn't find them from a agency. They also didn't impose restrictions on the movement of the au pairs. (Or make them cook family meals, etc.)
It would reasonable for the agency (not the hosts) to be on the hook if they knowingly were underpaying and/or keeping hosts in the dark about the possible changes that could result in much higher obligations.
You cannot hire an Au Pair in
You cannot hire an Au Pair in the US without an agency.
Also, the agency's are to blame here. They charge over $9,000 a year to the family and yet families get misinformed about the law.
It is impossible for someone
It is impossible for someone to hire an au pair without an agency. The State Department program requires a sponsor organization for the visa. The families you are referring to likely did not have an official au pair, but are working through a loophole or are acting illegally.
https://j1visa.state.gov/programs/au-pair
I thought the federal au pair
I thought the federal au pair program requires you use an agency.
It does
The relevant regulations are Title 22, Section 62.31.
It's not clear to me whether a family could somehow contract directly with a teenager to au pair, without running afoul of Federal law.
Please please please
Happy to explore different viewpoints, but all I ask is you read the article in question before commenting on it. Discussion is pointless otherwise. It's the AGENCY, not the parents that have to pay penalties.
Ok. Let’s start by...
... reducing your wages to $7.35 an hour, requiring long hours, no breaks and no overtime pay.
Please keep in mind that host
Please keep in mind that host families cover all expenses for their au pairs except for entertainment and clothing. Housing, food, car insurance, cell phones, tuition, etc are all covered so their stipend is entirely spending money. The expenses host families cover are not insignificant.
Our babysitter was a former au pair and now works part-time as a nanny while attending school. She observed that she has far more expenses now that she never had to take on as an au pair.
That said, I am supportive of a stipend increase for au pairs.
Being required to live at your job...
... is no benefit to anyone but the employer who is put in an even more powerful position over the employee.
If your former au pair thinks being au pair is preferable to have more control over their life, why the switch? I think you hear what you want to hear from employees.
Why switch?
Because the federal au pair program limits you to a two year term max; and, you have to be between 18 and 27 years old. It's not a career.
That is absolutely not true.
That is absolutely not true. How is advantageous to have an extra person living in anyone's home? Most host families are not wealthy people with in-law suites. The au pairs are living in the same spaces as the family. This is a key part of the program - the au pairs are welcomed as part of the family. There's definitely a privacy trade-off here.
Living with a host family does not entitle the family to have any control over the au pair. They are free to come and go outside of their work hours.
Keep in mind that these are young people who are often living away from home for the first time. They have no ability to find separate housing, nor is it practical for them.
ALL of the au pairs that I've interviewed and hosted have emphasized that they are first seeking a positive FAMILY experience. In au pairs that we are interviewing to host next year, NONE of them are saying that the MA wage is an attraction for them. For them, it's all about finding the right family fit.
Now, I'm sure there are au pairs who join the program for the wrong reasons, and families who join for the wrong reasons. A friend at the State Dept who has handled these visa interviews has told me that they take a lot of time during these interviews to explain what is abuse, and what to do about it if program rules are broken. The agencies I've worked with have been very responsive to au pair needs as well.
why the switch
They can only be an Au Pair for two years, then they have to go back to their country. Some find ways to stay, but they cannot be Au Pairs anymore. She is most likely on a student visa (cannot work legally) or got married to a citizen.
False
Wrong. I was a live-in nanny and it benefitted me as I could live rent-free and get established in a city in which I was unfamiliar. You're clearly speaking from non-experience.
Speaking from firsthand experience.
You’re clearly not speaking for anyone but your own self.
One may only be an au pair
One may only be an au pair for two consecutive years and one is also limited by age, 18-26 per the State Department. The idea that they don’t have control over their life while an au pair is laughable. They go out with friends, travel, and otherwise participate in the community in exactly the same ways you and I do. Join an au pair group on Facebook to see what I mean, tons of photos of travel around the US.
The whole point is that it
The whole point is that it benefits the AuPairs. They want to live in the US. The primary goal is to travel and improve their English. I'm sure there are some host families that like having a live in situation but the primary benefit is absolutely for the AuPairs.
Why the switch?
Because the visa is restricted to two years. They can’t be aupairs forever. I heard the same thing from my former aupair who now works as a nanny. She misses her days as an aupair when she had $200/week of spending money. Now she has to pay for all of her expenses: rent, utilities, food, health insurance, car payments, car insurance, gas, maintenance. At the end of the week she has nothing left, and she’s working full time, charging $20/hour. When people see the $7.25/hour rate, they don’t take into account all the other expenses that are paid on their behalf indirectly. Would it be better if they got paid more but had to pay For everything themselves? The math is the same. What difference does it make if an expense is paid directly or indirectly? Just to make someone feel better that they are paid more? It makes no sense.
ok, but you don't pay for
ok, but you don't pay for housing or transportation costs in your scenario.
Exactly.
Let’s see how the commenter feels about his employer being his landlord and source of food as well.
But the point of the program
But the point of the program is to live with an American Family. These aupairs usually come with poor English and a dream to either attend school in the US, or live here when their year is over. In that year, their English becomes proficient enough to apply for a job and speak the language, and learn and explore American culture. They have no bills besides fun money to use to go out, buy clothes, etc. They are given 2 weeks paid vacation! And often travel with the family, so they are enjoying seeing more of the country for free.
Those judging assume that these girls arrived here expecting private apartments and lavish lifestyles. Trust me, many families were unsure of having a stranger in their home, sharing their space. But it is part of the program. As for cooking dinner, yes they can be asked to cook dinner for the children. They are not asked to cook for the whole family, unless they want to share a native dish as our aupairs have done. STOP shaming the families who got another daughter out of this program, and start looking at the BAD families who were allowed to abuse their aupair (extra hours, NOT ALLOWED, cleaning the house, NOT ALLOWED, not including them, NOT OK). The agencies let the aupairs complaints fall on deaf ears and allowed families who were abusing the program to continue to receive aupairs either who rematched bc of the awfulness of the family, or did not extend. That is where the issue lies. Not with the families who loved these girls are their own. And who yes got childcare for their children, but in return gave these girls a home away from home in a country they wanted to know more about.
If true,
If so, then the agency is in violation of the Federal regulations.
I do think the agencies find loopholes
The only families I know who have au pairs are Spanish-speaking Latinx families themselves, and they hire Spanish-speaking au pairs, but most of their au pairs I've met have spoken very minimal English. And I'm not one of those people who's never left the country and thinks anyone making ESL mistakes speaks "bad English" -- I mean that most of them had trouble with very basic conversational exchanges.
Room and board are part of the compensation
Just like restaurant tips or the healthcare benefits that are becoming more expensive for most workers and consuming what would otherwise be wage growth.
Wage growth?
HAHAHAHAHAHAHAHAH
Wage growth. Yeah. You funny.
It’s just buying from the company store.
.
Profits are growing but wages can't?
Massachusetts has specific conditions for "room and board" compensation. Stop whining about enforcing the law.
Supplemented by my own room,
Supplemented by my own room, own bathroon (which my aupair has), food, vacations (disneyland, disney world, universal studios, ski resorts, vegas, miami, etc....all in 1 year), winter clothes when needed, xmas presents (like iphones, charm bracelets, etc), birthday gifts, and twice a year bonuses...and lastly, treated 100% like family. I would totally do it...
"Women's Work"
Is rarely valued. Caring for the young and old is unpaid labor by many women or underpaid labor for those who do it professionally.
And so are women
And so are women professionals, who are very unsupported but our current child care system. You want to promote women leaders, but hold them back by limiting child care options that are available.
So women should be permitted to exploit ....
... other women.
Got it.
Found the baby boomer "feminist"
Found the baby boomer "feminist"!
I'll break the glass ceiling while you stinky working class girls do the backbreaking labor for low pay!
God forbid my husband stay home with the kids!
Stinky? What a nasty comment
Stinky? What a nasty comment to make about young women. Shame on you.
Aupair
My Aupair has a car , all gas an iPhone 11 I pay for it all , food I pay for I get her fruits veggies protein special food she has my debit card to make necessary purchases ... I take ALL on vacation Disney , cruises, , MÉXICO I pay for all plane tickets , food accommodation tickets to parks ! I bought my Aupair plane ticket for Christmas to do a trip . She usually works 30 hours a week off most every weekend ... all my Aupair have enjoyed my family and I treat them well ... one Aupair was a dentist In Her country making same as Aupair in US she considered Aupair job a vacation with 3 kids . If you have to live on your own and pay all bills then yes minimum wage based on area is agreeable but aupairs don’t they get all this provided by host family
These comment s and the divide...
Will follow the similar Chipotle discussion from earlier in week.
Wishing you much success on your lawsuit
Oh no, AuPair employers are
Oh no, AuPair employers are the worst.
Effective wage
My wife and I recently welcomed an au pair into our home. I can tell you if all I had to do was pay state min wage and then the au pair had to cover their own expenses at some actual market rate it would be cheaper for us. We like the cultural exchange aspect of the program. Having someone you don’t know live In your home is not something I would (or many others ) consider to save a small amount of money. Most often the economic value of the program to families comes to families simply because they have a private room they can utilize in their own home and the au pair gets value out of that that the host family gets value out of as well without having to charge rent directly.
There are protections for Au Pairs in place. Au pairs are not taxed for all the benefits they receive - which they would if they were employees.
We pay for room and board ( all food and utilities, toiletries, dinners out with family, etc), stipend, some clothes, education expenses, transportation costs, gifts, vacation time and other expenses. Not too mention the agency fees.
Our Au pair is not required to do housework, etc for anyone other than herself and the children. If the au pair wants to do more she can. She does not work 45 hrs a week.
Comparing au pairs to a nanny or a typical employee-employer relationship is ludicrous. You might as well be sued by your child because their allowance doesn’t meet state minimum wage and they have to mow the lawn, clean, etc.
Except your ay pair isn’t your child.
Despite many employers attempts to infantilize then.
you might want to review the
you might want to review the laws around charging domestic workers for expenses.
https://www.mass.gov/service-details/domestic-workers
As I said, the worst
The problem here is that not
The problem here is that not all families are like that. Not all families abid by the 45 hours, not all families give the au pair actual FOOD (transportiation, cellphone, vaccation, gas, etc I really do think are a plus to all, but FOOD, really?).
I'm part of a 30.000 au pair group on facebook (my country only), and believe me, there are AWFUL stories out there.
If these cases (overtime, psychological abuse, lack of food, etc) were viewd on a case to case basis (on even acknowledged), I'm pretty sure that this lawsuit wouldn't even have existed.
Most au pairs are happy with their exchange, I am definitely one (nov2017 to nov2018), but some friends weren't as lucky.
And please, the problem here are the agencies, not the families (in most cases).
Yes it was the agencies
The angencies have been double charging families and AuPairs for the same expenses. They misled people to believe that AuPairs were exempt from minimum wage laws
The Mass AG is enforcing the wage laws to protect all of the residents of Massachusetts, not AuPairs. While I am willing to believe that people from other countries are willing to work in child care 45 hours for $195 a week, that doesn't serve workers that live here.
And all of those extra's are self serving. The cell phone allows them to call you day and night. Going on Vacation, you help with the kids and watch them at night. Living in the house, Keeps you always available.
You don't have to hire an Au Pair, you know
.
End of the program
Au Pair program is not designed as a labor program. A situation of an Au Pair is not comparable to the situation of a nanny or any other type of domestic worker. An Au Pair lives with the family and has all the expenses paid for. Those are young people on a gap year, not laborers. She receives a stipend regardless of how many hours (up to 45/week) she works. The stipend is fully disposable income, they have no costs.
The ruling in MA puts the end to the program that is designed to be a win-win for both the parents and the Au Pair. Parents get cheaper childcare and the Au Pair gets to live in the US and explore the country. This is not going to happen any more, because at minimum wage most people will not be willing or able to afford to put up with:
- paying over $9000 fee to the agency
- paying room and board, increased utilities
- paying for incidentals such as family outings, gyms, vacation, education etc.
- paying for car insurance and gas
- dealing with a young inexperienced person that does not speak English well
- dealing with training of the new Au Pair every year
- limited hours (no more than 10/day) and limited chores that they can do
- dealing with monthly meetings (transportation $ and scheduling) and constant check-ins with the agency
etc.
That is it. It was a decent program and many families and Au Pairs had a great experience, now it is coming to an end. The nanny lobby won.
This program needs to end
It created the illusion that you could afford a domestic worker. You are not entitled to bend the law.
Of the program is ending
The program is ending due to the sponsors, their greed and complete disregard of host families and au pairs alike.
Their are many great host families who host very happy au pairs. Unfortunately they are also Host families fail to adhere To program requirements and treat their au pairs fairly.
Instead of removing these families from the program, sponsors continually rematch them for profit.
Good families have been mislead regarding the minimum pay requirements for years to make the program attractive and grow profits.
Sponsors mistakenly assumed that families would be responsible for lawsuits that resulted from minimum wage violations. They were wrong. They’ve been operating unethically and will bear greater oversight by the department of state.
If the sponsors would simply lower their extraordinary fees families would be able to pay minimum-wage with little effort.
Good on paper but affordability in the real world will get you g
I personally don’t think the amount is the problem for Au pairs but what their stipend is up against in affording life in the streets is. Now that’s what the agency needs to communicate because mostly, the dollar is way higher than most currencies, except for European and UK Au pairs, hence I say it’s good on paper, Until you convert it to hard cash in the US, totally different scenarios.
Yes no one forced us, but no one actually informed us about affording life while we are traveling, and then you have taxes to come and bite you in the butt. All of this is just misplaced anger.
Magoo sez
Can an au pair work at Au Bon Pain? Magoo.
Is the Au pair program
Is the Au pair program intended for cheap childcare? Or was the rationale just cultural exchange?
State dept regs:
Also there is little protection for au pairs so there can be (and is) a lot of exploitation (i.e. work 65 hours or you get kicked out)
Also a violation
Clear violation of Federal regulations:
More lawsuits if the "hosts" make au pairs work 65 hours a week.