Latest Salvo in Campaign to Shut Down USA’s Au Pair Program

by cv harquail on March 24, 2017

Host Parent Clients of Au Pair In America received a distressing letter from the Agency this week, sharing information about the ongoing legal action against all 15 of the approved Au Pair Agencies in the USA.

The letter updates parents on the current status of the suit filed by lawyers from Boies, Schiller & Flexner, LLP, and alerts us to a few key issues:

Highlights from the letter include:

  • The federal court has ordered all 15 agencies to provide host families’ names and contact information to plaintiffs’ attorneys by March 31, 2017;
  • Au Pair in America (and other Agencies) fought to keep our family information private, but they lost this motion.
  • The plaintiffs’ attorneys intend to survey host families and/or to communicate with host families using telephone, email, and other methods.
  • If contacted, you are not obligated to respond to plaintiffs’ attorneys.
  • Plaintiffs’ attorneys are obligated to tell you that they are working for clients who are working against the Au Pair Agencies.

2889437201_71a56cd11a_mAs it stands now, there is the possibility that each and every host family active in the Au Pair Program between 2009 and 2014 will be solicited to share feedback on how they followed the US State Department guidelines while they had an Au Pair in their family.

I appreciate that APIA has taken the proactive step of alerting families about what’s coming. With a little advance warning, each of our families can consider whether or not we want to respond if called upon by the plaintiffs’ lawyers, and if we do want to respond, what we might say.

When you think about what the plaintiffs and their attorneys are doing, it rather boggles the mind.  They are suing 15 small organizations — some of which are non-profits, none of which has huge revenues — with the intent of shutting down the Au Pair Program.   They are highlighting the rare abuses of the program, stoking resentment and ill will among the Au Pairs named in the suit, threatening the opportunities of future Au Pairs, and doing nothing that will actually help Au Pairs or Host Families have better experiences overall.   This is a program that is, actually, well-regulated and usually well-administered.

Once again, let me note that no one — no one — has contacted the Au Pair Mom community to gather any of the overwhelming data that show how useful, how important, and how positive the Au Pair- Host Family relationship usually is.

Host Parents Who Are Attorneys 

Do you have any advice for us?  

Would speaking to the plaintiffs’ lawyers do any harm or good?

What responses (and proactive actions) should Host Parents consider?

A final note — the email was sent to all APIA families, with the subject line “confidential.”  I understand that by sharing a summary of this information with AuPairMom readers, I may be getting in the way of APIA’s effort to keep everyone as calm as possible in response to this news.

At the same time, let me note that almost one dozen Au PairMom readers sent me copies of the letters that they received — so I’m assuming that this issue feels critical to the Au Pair host family community — that’s why I’m raising it here.

I don’t know what efforts other Au Pair Agencies are making to address how the suit might impact their client families. If there’s important information, please share it with us.

 

 

 

See also:

How Should Au Pair Host Parents Respond to Charges Against the Au Pair Program? (March, 2015)

Image from Flickr, by Kelly Teague, A Bit Bruised

 

 

{ 70 comments }

Fortysomething HM March 24, 2017 at 5:20 pm

Attorney here.

Without having seen the letter, my preliminary plan is to ignore and refuse to respond – 100 percent. They are advocates for the plaintiffs. Any questions will be asked from that vantage point. There is, as I can see it right now, nothing that any HF can provide to them that will make them go “oh gee, we’re wrong here. Our case sucks, let’s retreat.” Whatever you say, can and will be used/spun in favor of the plaintiffs.

txmom March 24, 2017 at 10:10 pm

I’m hosting with APIA and didn’t get a letter from them. I did get one from Cultural Care though…I’m registered with them too (was looking for our next AP with lots of agencies). It’s not just APIA sending out info to HF.

TexasHM March 25, 2017 at 12:01 am

Correct like CV said all the agencies have been required to hand over the information. We got the email from APIA which is funny because we have not hosted with them for years. We are with CCAP and did not yet receive notification from them. As it says in the notice they had to release information on all host families that participated in the program between 2009-2014. I guess the agencies aren’t required to notify but I appreciate that they are.
Personally I’m really disappointed it’s gotten this far. Our previous AP sent me all the details on a J1 work program in our area and I was surprised. Not only is it thousands for her to get here but by the time she pays for housing and food even if she worked the maximum hours I don’t see how she would make anything to bring home – a far cry from the $200 a week she got free and clear in our household and she wouldn’t have any insurance or transportation! Plus the marketing glamorizes their opportunity to “travel the US” – not that they could afford to do so. I can now see why so many seem to be anti-J1, I get it, but this program is nothing like that. Here they have a private room and food covered, often family support and transportation provided and agency training and support and clear almost $200 a week. None of that is true of the traditional work J1 visa.
It’s my understanding the plaintiffs are here illegally having overstayed their visas and are trying to gain citizenship and get a settlement. Shame. I had hoped and really thought this would get tossed out but now am really wondering if this isn’t the beginning of the end. As CV said, there are nonprofit agencies and fees/operating costs are already up there, I have to think agencies will have no choice but to pass the costs on to the HFs and APs and an AP is already too close to what I could pay a nanny here. Bummed.

HMAdvice April 11, 2017 at 11:18 am

You couldn’t have captured my sentiments better TexasHM.

DCBurbTwinMomma March 25, 2017 at 7:56 am

I’ve not read briefing on either side of the complaint to be as familiar with this action but I am familiar with the type of discovery they are undertaking. While each family is free to ignore the request, those who feel even a modicum of sympathy for the plaintiffs will respond. The resulting evidence will be presented to only represent those voices. For example, we surveyed 100,000 past and current families who hosted during x and y , and of those respondents, an overwhelming 93% believe each should [fill in the blank stance that may not represent even a minority of the au pair community]. They will have already hashed out the validity of their statistical sampling to include how homogeneous we really are and thus few respondents do indeed speak for the class of “host parent.” I’ve successfully used a statistical sample of 35 cases in a universe of 400,000 once I got over the hurdle of “representation of the universe.” We are all parents from *generally* a similar socio-economic background. I wouldn’t bet against the odds that they will be able to use few answers for the entire host parent community. It’s not difficult.

Keep in mind also that this is not a political survey with questions like “is the president right to deport undocumented infants who commit murder” [obvioys asinine question]. The lawyers want the questions to be sufficiently open ended and ADMISSIBLE into the court as unbiased and not leading. They will most likely be mundane and fact finding so as to stand as a basis for the narrative put forth. Again, who is most likely to answer to want to cooperate?

CCAP has not notified me yet. When they do, I choose to be a voice in this matter as an interested party and answer the questions. I respect those who do not but as a lawyer who has used stat samples, I feel it’s a disservice to count myself out of a matter which may greatly impact my participation in the program.

May sanity prevail as well as justice.

DCBurbTwinMomma March 25, 2017 at 7:58 am

clarification: CCAP has not notified me nor have I been surveyed.

TexasHM March 25, 2017 at 1:08 pm

I’d like to speak to them to share my dissenting opinion but my fear was as stated above that it either would be ignored or worse, twisted to further the case of the prosecution. DCMomma you obviously are well prepared to face the interrogation. Would you recommend someone with no legal background speak to them and if so, how could we best represent our position without playing into their hand or is that just a chance we have to take and it likely won’t change anything?

Emerald City HM March 25, 2017 at 11:21 am

Is there any way for us to write letters to the defending lawyer?

DCBurbTwinMomma March 25, 2017 at 6:26 pm

I totally understand our hesitation to jump in when our interest can be twisted. I do not downplay that at all. What we can do is write what is called an Amicus Curiae Brief (“friend of the court” letter) to the judge. It’s a letter stating our position on the court case collectively as aupairmom.com community and/or individually as Ms. DCBurb TwinMomma (which is now mom of three so I’ll be changing that soon). I think those are the most powerful statements that can be made, go to the judge and not either side (although we can and should persuasively plea for [x, y, z that we agree to]. It doesn’t have to be a legal argument, but it’s useful to refute the plaintiffs issues either in plain language or in brief. The judge has the discretion to accept these letters or not.

https://en.m.wikipedia.org/wiki/Amicus_curiae. This a link to learn more about the “friend of the court” letter in general.

This way we don’t have to hope we’re solicited and can be heard.

Dorsi March 27, 2017 at 12:57 pm

It seems to me that a few hundred non-form amicus letters (which don’t have to be professionally prepared, right?) is a better statement than one well-prepared letter signed by a few hundred host parents. But I’m no lawyer. :)

TexasHM March 25, 2017 at 6:35 pm

Genius! Love it! This is a great community! I’m happy to play secretary or whatever is needed to help that brief come to fruition. CV has my contact info!

ChiHostMom March 26, 2017 at 5:00 pm

I’m in for the Amicus Curiae Brief too.

CozyFarmHM March 27, 2017 at 2:51 pm

Fellow lawyer Host Mom too. I’m in for the Amicus brief too.

Quirky March 27, 2017 at 7:10 pm

I think that to have the best chance of getting an amicus brief in, an attorney either admitted to the district court or who could get admitted pro hac vice would need to file a motion for leave to participate together with the proposed brief. I think it’s a good idea, but there’s more to it than just writing a letter.

Fortysomething HM March 28, 2017 at 9:43 am

The plaintiffs in the lawsuit are making wage and hour claims (among others, but this is a very big part of this litigation). This is my practice area. I expect that many, if not all, of the questions that will be aimed at the HFs will involve factual matters such as (a) how many hours a week each of your au pairs worked (b) what was their pay each week; and (c) did you as the HF keep records of the weekly work/pay.

The Court in this case, in the preliminary ruling denying the Defendants’ motion to dismiss, ruled that based on a reading of the FLSA and relevant regulations, the FLSA applies to au pairs. If this ruling stands after the discovery and trial phase of this case, this means the au pairs will be entitled to minimum wage (looking backwards during the statute(s) of limitations, and going forward as well).

Also part of the initial ruling: a finding that the applicable regulations expressly do not allow the HFs to take credit for cost of housing, since the APs are required to live with the HFs. While I think this is nonsensical as applied to the AP program, if the FLSA applies to APs (and this Judge found that it does) the applicable housing regulation, as currently written, is pretty clear on this point , and the Judge in the case accordingly rejected the Defendants’ arguments on this point.

Please note that as HFs, we are employers under the FLSA.

So all this is to say: answer the questions asked by the Plaintiffs at your own peril. Unless you paid your AP minimum wage (which varies by state) plus 1.5 times their regular rate of pay for hours over 40 each week, you are a potential defendant for these claims and any detail that you provide can (and possibly will) be used against you, personally. The statute of limitations on a wage claim can be anywhere from 2 or 3 years to 6 (NY state is the longest in the US at 6 years).

While they may not be aiming at HFs right now, we are absolutely fair game under the FLSA, so I would not assume that the target won’t eventually shift.

Emerald City HM March 28, 2017 at 11:07 am

So I’m curious as to how they could blindly apply the room and board don’t count given this: https://www.dol.gov/whd/homecare/credit_wages_faq.htm

Fortysomething HM March 28, 2017 at 11:23 am

It’s the voluntariness that’s the issue. APs are required to live in the HF home.

See e.g. #2 in this FAQ in your link:

2. Q. Under what circumstances may an employer claim the Section 3(m) credit for lodging?

A. An employer who wishes to claim the section 3(m) credit for lodging must ensure that the following five requirements are met:
1.Lodging must be regularly provided by the employer or similar employers;
2.The employee must voluntarily accept the lodging;
3.The lodging must be furnished in compliance with applicable federal, state, or local laws;
4.The lodging must primarily benefit the employee, rather than the employer; and
5.The employer must maintain accurate records of the costs incurred in the furnishing of the lodging.

Emerald City HM March 28, 2017 at 11:43 am

I’d argue that they are voluntarily accepting the lodging as a condition of employment with our family.

“For example, this requirement is typically met when a live-in domestic service employee and the employer have an understanding that the employee will live on the premises as a condition of employment, or when an apartment complex provides a free apartment to the complex manager.” Under the Q and A.

Either way, it seems host families are not properly defended in this court case, so it is unclear to me how we could be sued without proper representation.

Fortysomething HM March 28, 2017 at 11:55 am

There are a number of different ways, procedurally, that HFs could be sued directly for alleged wage and hour violations, at which time you would be served with the complaint, and then you’d be responsible for hiring your own legal defense. You don’t get representation until you are a party (and strategically, the Plaintiffs in the instant case have decided not to pursue HFs, for now at least).

This is just one court case. Anything you say in response to a questionnaire from Plaintiff’s counsel in this case would be an admission (fair game to be used against you and/or the agencies) in this or any future lawsuit.

I don’t disagree with you that this regulation (and indeed, the FLSA itself) should not apply to APs and HFs . But the Court in this particular case has sided with the Plaintiffs on this issue, at least so far.

Emerald City HM March 28, 2017 at 12:04 pm

Makes sense, I was worried I could get sued without representation. Sigh. What a colossal mess.

I’m disappointed that these small handful of host families potentially have ruined the entire program.

WarmStateMomma March 28, 2017 at 7:33 pm

It’s odd that the whole program would fall apart because of a few bad apples. Every industry has them but we don’t shut the whole industry down.

TexasHM March 29, 2017 at 1:23 pm

Emerald City HM I’d argue potentially the HFs didn’t even ruin it. If you read the original complaint and articles the APs say they didn’t try to rematch. In one case the AP thought the city she lived in was too small and she had car access! I get it – being crazy food restricted, basement no heat, sexually harassed (I’ve personally known those situations) is crazy and has to be stopped. But end the AP program because an AP thought her city didn’t live up to her expectations so she doesn’t rematch, overstays her visa and then sues? Come on!

Emerald City HM March 29, 2017 at 1:27 pm

Yes, excellent point. I’ve been wondering why these au pairs didn’t rematch or bring their concerns up with the agency at the time. Which is also why I’m really surprised it has gotten this far.

Fortysomething HM March 28, 2017 at 11:38 am

I encourage everyone here to read the March 31, 2016 decision by Judge Arguello in Beltran v. Interexchange – the version I’m reading is not from a publicly-available website, so I can’t paste it but I would guess that Google might get you to the opinion somehow. Note that there is more than one opinion in the case regarding different motions/issues – it’s the March 31, 2016 you want.

Here’s the relevant clip re: the housing regulation :

“However, pursuant to 29 C.F.R. § 531.30,20 an employer may not credit the cost of facilities toward an employee’s wages if the employer is required by law to provide the same. 22 C.F.R. § 62.31(e)(6) provides that “Sponsors shall secure . . . a host family placement for each participant. Sponsors shall not . . . place the au pair with a family who cannot provide the au pair with a suitable private bedroom.’”

Emerald City HM March 28, 2017 at 11:47 am

Bah, I see that now, given that this expense is considered for the benefit of the employer. :/.

Now I’m sort of debating on whether or not to cancel our upcoming match.

Fortysomething HM March 28, 2017 at 12:12 pm

I’m plugging forward with my next AP (my fifth), who will come over the summer, even though I know what I know about this lawsuit.

Nobody is going to know what hours my APs worked or what they earned unless either I (or my APs) tell someone (which is part of why I’m not answering any questionnaire from the Plaintiffs here). And frankly b/c we are a school age household with a split schedule, I know that the math is such that my APs are making more than minimum wage for most weeks of the year anyway, even without room and board in the mix.

I think that absent some legislative action (which makes clear that the FLSA does not apply to APs) the agencies will lose the FLSA argument if they end up having to address that issue in the long run. BUT I don’t think it gets that far. I think this lawsuit will fall apart/fail because Plaintiff’s won’t be able to meet class certification standards (for me, the class certification issue is another reason NOT to respond to a questionnaire, but those are for complicated legal reasons I won’t bore everyone with here).

Even if the Plaintiffs in this case succeed (which will take years), I think what would happen more than likely is that the program would end if it weren’t overhauled or if additional legislation were not implemented that makes clear that the FLSA does not apply (who is paying minimum wage plus overtime to an AP? Why wouldn’t you just then hire a nanny/sitter from the US?).

To sum it up, I don’t think it’s LIKELY that anyone is going to come after me for wages due, so I’m plugging forward with hosting in the normal course. (but I’m not putting in the hands of Plaintiffs’ counsel the details of what my APs worked/were paid either).

Emerald City HM March 28, 2017 at 12:21 pm

Thanks for your perspective. While we don’t have the same situation, I do know that our au pairs have generally been happy.

A's Mama March 28, 2017 at 1:30 pm

Another lawyer here. I agree that class certification will be difficult–it seems like the only issue common to the class of APs is the one already decided by the court (the applicability of FLSA). Beyond that issue, each individual au pair’s situation (as to hours, work conditions, etc.) is different enough that treatment of a class should not be permitted–although courts have done crazier things.

WarmStateMomma March 28, 2017 at 7:31 pm

It’s not about the money for some families We hire for language, which is a skill we can’t get locally at any price. I wouldnt have to pay for school, vacation, airfare or travel health insurance, though.

HostDadCalifornia March 29, 2017 at 1:35 pm

I read the filings some time ago and it really bothered me that the briefs filed for the agencies explicitly say that if there was a wage issue, then HFs would be the responsible parties, not the agencies. We rely on the agency to tell us the rules of the program. If they are wrong, the agency should be the responsible party, not the HF.

TexasHM March 29, 2017 at 4:32 pm

I had the same impression HD CA – if we hire an agency and contract with them to participate in one of their programs and we follow their rules (which are government guidelined) then how am I responsible for having not paid properly? As others have noted it was a state dept calculation – not HFs or agencies. And how long would we have to worry? What’s the statute of limitations? Thinking of Emerald City HM saying she might bail on program but they are asking for HF contact info from 2009-2014 or whatever it was. So I could have hosted one year (2009) and be a part of this?

I think we all agree the program could use some tweaking, but these aren’t the puzzle pieces I would be going after even if I had a magic pen to rewrite the program for all the reasons others have already noted on here (you make it more expensive and nobody hosts anymore, you calculate it by geo and it might not make a difference – higher wage but also higher amount charged back for room, etc).

Fortysomething HM March 29, 2017 at 4:53 pm

For TexasHM

The statute of limitations under federal law for wage claims is 2 years (3 years if the violation is willful). Some state wage statutes have a longer period (as noted, NY is 6 years).

I think that the actual risk of HFs actually being sued is rather low (if HFs are added to the class action as defendants, it would all but guarantee they don’t get certified as a class given the many differences that would exist between each AP and their HF). It’s no guarantee that we won’t ever be sued, but the agencies are the “deep pockets” so they are the ones in the cross hairs (and likely to stay there).

TexasHM March 29, 2017 at 5:04 pm

Thanks FortysomethingHM that’s very helpful and hopefully makes others feel better as well. It’s hard not having legal background to gain perspective here and as others have said (myself included) shock around it getting this far makes me wonder how it’s still being pursued but as always you all are a great community!

WarmStateMomma April 1, 2017 at 5:05 pm

As a practical matter, I can’t imagine anyone I hosted suing me. After the vacations, the gifts, the shared memories … it’s low on my worry list. If she needed money, she’d probably get it by asking directly.

Dorsi April 2, 2017 at 2:11 pm

So, we had one bad match, who I could totally see suing – though we are probably getting close to the end of the statute of limitations.

Am I right to assume she would have to travel to the US, hire an attorney to sue us? She was with us about 8 weeks, it’s conceivable we could be liable for a few thousand dollars under our states minimum wage laws. Seems like an attorney wouldn’t take the case without a larger potential payout; doubt she has the cash to pursue such a thing (or the imagination or intelligence to know what to do).

TwiceBurned March 31, 2017 at 10:39 am
TexasHM March 31, 2017 at 12:00 pm

This helped a lot thanks for posting! To others point, the entire focus appears to be on wage fixing, whether or not FLSA applies (which could impact whether or not overtime is required and what is accepted as room and board deduction – if anything) etc.

As FortySomething noted the DOS is silent in these briefings and all the references are copies of documents sent over the years updating the sponsors. There isn’t a clear line as to where the policies came from in the first place.
The price fixing thing is unfortunate on many levels because as stated, many of us pay more than the stipend and the references used by the plaintiffs are from agency documents warning the APs of trafficking scams. So basically the agency tells APs that if a supposed host family reaches out directly and offers more beware of a scam (which is good advice) but in this instance is being spun as the agencies making deliberate efforts to ensure APs don’t get a dime above $195.75 a week and I think we would all agree that is completely untrue. We have been with three agencies and all only made sure we paid at least the $195.75. They didn’t ask if we paid more and try to stop it or discourage us from paying more in any way – all that is hogwash.

And as others have said – if you have higher cost of living and calculate local minimum wage you might come out worse so I just don’t get the point here. Unless the point is to get the DOS more involved. But they are going after the agencies…

WarmStateMomma April 1, 2017 at 5:01 pm

There are loads more aspiring APs than HFs. Thus, the State Dept provides a floor below which the compensation cannot fall. No one accuses retail stores of price-fixing wages when they pay the minimum wage – it’s there to ensure that people who can get a job are paid a minimum amount. I’d argue it’s the same with hosting. I’d be ok with them pegging the minimum stipend to CPI or some other inflation metric.

ChicagoAttyHM March 28, 2017 at 2:05 pm

In addition to wage and hour claims, the case also makes antitrust price-fixing claims against the agencies. I would not be surprised if part of the information class counsel will ask about is whether host families believed that the weekly wage was something set by the agencies from which families could not deviate. If they get a bunch of responses indicating that was a common belief amongst host families (as opposed to an understanding that the weekly stipend (a) was based on federal regulations that each agency independently interpreted and (b) is an amount that families can and do pay above, as we see often on this board), class counsel would likely use those responses to help argue against the program.

Fortysomething HM March 29, 2017 at 3:20 pm

I agree with your assessment and prediction about what else is likely to be on the questions from the class counsel. I definitely don’t do “price fixing” law (so maybe someone here does and can weigh in on this part of the case) but it strikes me as backwards to suggest that the agencies are “price fixing.” It appears to me that the MARKET just naturally sets the price based on the State Department rules. There is a minimum rate. Set by the government. HFs are willing to pay the minimum rate, and APs are willing to accept it. That is, as a matter of circumstance, the going rate for an AP. What agency would then price above it? Why would they price above it? (incidentally, isn’t price-fixing usually the “other way around” (ie. Companies A, B and C got together to agree that they won’t charge LESS than $x for a product/service?).

If agency A, B and C are all offering APs to be paid a rate of $200 a week (I’m rounding for ease here), why would agency D then offer their APs at $225 a week for the same d@mn thing? (note that the Court made clear that this is about pricing for “regular” APs – not “extraordinaires”). And honestly, that’s what an AP is essentially “worth” as a service (not as people of course), when combined with the other costs. Nobody is paying substantially more for an AP, or you are going to go get an American nanny/sitter.

What really bothered me when reading the March 2016 Opinion is what seems to be a very loosey-goosey, thin and somewhat old set of State Department regulations that govern the program. It seems as though the program was created years ago and it’s been left to just “hang out there” with very little attention since.

There must be one or more governing statutes out there (since regulations are, by definition, not laws themselves but only exist under authority given by a statute). I really want to go read whatever statutes govern the AP program (has anyone looked into this lately?). It seems to be a bit of a no-man’s land and the class counsel is taking advantage of that.

I think the best way to salvage all of this starts at the legislative and/or administrative level. Congress and/or the State Dept needs to step up and clarify some of this with better, more detailed regulations. The Court is going to do what it’s going to do with the law that is in front of it. What the program was meant to be, or what it’s become, or what we think it should be, or our experience with it does not really matter if there is a regulation that says “FLSA applies” (and it appears there is – a fact which shocked me when I read the opinion).

Of course, with all that’s going on in our government these days, what are the odds that anyone in Congress or the Dept of State is going to care enough to pay attention to this issue?

ChicagoAttyHM March 29, 2017 at 4:52 pm

I completely agree with you that the only clarity on this topic would have to come at the legislative or administrative level, such as the State Department clarifying the applicable regs. Amicus briefs to the court are likely to be ineffective–host families and au pairs lauding the benefits of the program simply don’t have much (if anything) to do with the legal issues before the court.

NJ Mom March 30, 2017 at 8:01 am

I vaguely remember one agency having different stipends for more experienced APs, and a different stipend for educational APs. Something like if the AP had so many hours child care experience or has a degree in a childcare related field their stipend is more. And another type of AP who has a lower max weekly hours and more required credits gets less stipend and more educational $. So I don’t see how this is “price-fixing” by the agencies. Also when we looked into extension APs, CCAP actually recommends that HF consider an increased stipend for an extension AP because theoretically the AP has more experience, better english, and is more accustom to the US.

TwiceBurned March 31, 2017 at 10:51 am

The relevant federal statutes:

https://www.law.cornell.edu/cfr/text/22/62.31

Taking a Computer Lunch April 1, 2017 at 6:20 am

My understanding is that the agency fees were set by the U.S. Dept. of Labor – minimum wage minus room & board, which is why they are remarkably the same. And yes, APIA has a structure program so that “Extraordinnaires” – APs that can prove 2 years of direct work experience with children – may be paid more. The difference was greater in 2000 ($200 vs. 139ish) than in 2017 ($250 vs. 195ish). There may be other agencies that have a structured stipend – we just never used any agency but APIA.

The reason I say this is – DH and I attempted to sponsor our first AP as an employee because she had been a PICU nurse in her native country and everything had gone south on The Camel (several rare diseases as a result of a chromosome disorder). We hired a lawyer, who – before we could post an advertisement in the local newspaper that proved that the AP was the only applicant, had to get the wage set by the U.S. Dept of Labor and certify it. We posted the ad – the AP was the only one to apply and interview – a low wage, plus the requirement of a nursing degree and a US driver’s license knocked at all other candidates – and then waited three years for her application to rise to the top of the queue (by which time she had moved on). During this time we sponsored her as a student, so she could leave the country and return.

Anonymous in CA April 1, 2017 at 11:45 am

On the stipend…I believe that with Pro Au Pair, they require the stipend to be more like $1500 / month. I’m not sure if that’s the current number. While I’m sure the au pairs from Pro Au Pair are quite good, they’re not trained as au pairs, per se, rather people with degrees in OT or PT or some field like that; the au pair program is for them really a paid internship to gain experience relevant to their chosen profession.

Dorsi March 28, 2017 at 7:04 pm

I’m not a lawyer (just to be clear). However, if they rule that FLSA applies, can I be more like a McDonald’s manager in my hours – Schedule the Au Pair from 7a-7p, but realize the kids have a play date and let her off at 3p? It seems like the you can’t have it both ways – protections of the Au Pair program (you must be paid for 45 hours per week, even if you call out sick, even if you are on vacation, even if you get let off early on a regular basis) can’t apply at the same time as the FLSA.

Our kids are needing less care every year, but we need the flexibility of the AP program. I could pay minimum wage as long as my AP was always available and I could extend or cut short her hours on my whim, and I was only paying for hours actually worked. Take away the education component, the paid vacation, etc, and a minimum wage program could work for some families – while destroying the spirit of the program.

Fortysomething HM March 29, 2017 at 2:54 pm

Just a note that you can’t actually schedule employees on a whim like that in many jurisdictions (not b/c of the FLSA though – mostly due to state and local laws). For example, in some states if you show up to work and your employer doesn’t need you, you are still in entitled to “call in pay” (usually 3 or 4 hours). There’s a big movement in retail to have schedules done in advance (e.g San Francisco has laws requiring a minimum amount of notice for retail employee schedules (with penalties assessed for less than the required notice)).

Having said that, you are absolutely 100 percent correct that employees under the FLSA have no right to be paid for hours they didn’t work (there are, however, more and more state/local sick leave laws cropping up, and private companies can opt to provide Paid Time Off, etc). I TOTALLY agree that it’s absurd to say “FLSA applies” but then have these State Department rules about paying them the full 45 hours even though they work 20 hours, or frankly even if they work NO hours per week. It would essentially make having an AP just as expensive, and in fact more expensive and burdensome than hiring an American sitter/nanny. APs would get MORE rights than employees under the FLSA and HFs would probably end up having to juggle the growing number of state and local employment laws that are cropping up, like the local sick leave laws.

WarmStateMomma April 1, 2017 at 4:56 pm

That’s the rub, isn’t it? APs get benefits employees don’t and they have burdens employees don’t.

Is this law firm also going after the hospitality industry for guest worker programs? Those visas also restrict the individuals to working for one employer and living in (and paying for!) employer-provided accommodations. At least APs can change HFs; hospitality guest workers have to pay for their flight home if they become unhappy with their situation.

HRHM April 4, 2017 at 2:50 pm

In addition, I also don’t see providing cell phone and car to my “employees”…

WarmStateMomma March 28, 2017 at 7:28 pm

Au Pair scare has sent the email now. It’s so sad that the au pairs and families could lose this amazing program. As a big firm lawyer, it boggles the mind that any firm would take a case like this pro bono when we are drowning in worthy causes. There must be a personal connection with one of the plaintiffs because it doesn’t make any sense otherwise.

Anonymous in CA March 29, 2017 at 4:21 pm

This definitely has me thinking about whether to keep hosting. We are between APs right now, intending to get some work done on our house, in part to upgrade the AP’s living space. But if I could be on the hook for past wages because of this suit…I’m not sure I want to take on that risk. Sigh.

HMAdvice April 12, 2017 at 9:27 am

As I think about this law suit, I can’t help but wonder: Has the program wandered too far from it’s original intent? Shouldn’t the focus really be on cultural exchange with the family? Maybe in this day and age no young person would want to do the program if you told them that? Even in this blog there is so much talk about amenities and privileges. I hear about bidding for au pairs with the nicest accommodations etc. There is constantly somebody asking “what is in it for me?” In all honesty, I think that is the root of the issue. If I were a young person, I would be enticed by the chance to travel and “see the world” too and sure there are some opportunities for that but maybe that shouldn’t be the focus? The reality is that the majority of their time will be with the kids and/or family. Even if an au pair was trying to “self fund” travel they may only have enough money for 1 or 2 trips and that is only if they saved EVERY penny. They have a greater chance of picking a family that likes to do these things and participating with their families. I know that may not be as enticing, but maybe that is the issue. The agenices need to be real about expectations. On the flip side, I know there are families out there that just want an “employee” and again that goes against the intent of the program. In my opinion this court case is about a family that broke the rules. I can’t blame the au pair for being fed up if the allegations are true but again the heart of this case is about a “job” and maybe if the focus was on a cultural exchange program we wouldn’t be in this situation?

Mimi April 12, 2017 at 10:39 am

This is a good point. I think that it has strayed in a way for many reasons. The globalization of technology and media in the world today that has made large parts of the cultural exchange obsolete. International media carries most of the stories that make headline news in major countries and American shows are all available for consumption in other countries. Many of our APs come here thinking they know all about American culture so they are looking for something different than the traditional cultural exchange that the program was founded on. There is less about American culture that is a new discovery for many APs.

Adding childcare to the mix means that where some families might have taken a chance on an unfamiliar culture, the stakes are too high for the kind of risk that might be closer to the original ideal of cultural exchange. This is certainly true for my family. We stay with a culturally familiar group of countries based on our family ancestry. We do learn many things about the nuances of the regions in these countries, but we don’t take full advantage of language exchange or put pressure on the APs to actively share their side of the equation, even as we work to make sure we are providing cultural experiences for them. The few forays we’ve had into other cultures (both of which HD and I have had extensive exposure to) was a disaster for our family dynamic.

Another really big contributing factor to the evolution of the program is how subsequent generations of APs and the American family are evolving. My generation relied on each other for entertainment and that’s largely not true of the current generation, regardless of their country of origin. All of our APs have had the primary goal of wanting to improve their English and many have come here looking for a more “me” centered experience. Few of them have probably given much advance thought to what they can proactively share with their HFs and American families are so over scheduled that there often isn’t time in many families for the kind of interactions that cultural exchange benefit from.

I think all this contributes to issues in the program. It’s unfortunate because when it works, it’s an amazing experience for everyone, but the program definitely needs some improvement and an overhaul.

HMAdvice April 12, 2017 at 12:39 pm

Given those points you wonder if we really are trying to fit a round peg in a square hole? A need for affordable and flexible child care A person wanting to travel freely. I think there are still cultural exchange possibilities though. I realize that the American culture has kind of sifted its way in to many cultures around the world but I still think the au pair program can have cultural value. I know we have learned things from our au pairs. It just has to be less glamorized. Better marketing of the program would be towards people interested in having working experience with children and families instead of a way to travel cheaply.

HMAdvice April 12, 2017 at 1:01 pm

** should be A need for affordable and flexible child care does not equal A person wanting to travel freely.

I used greater than less than and it didn’t show up.

TexasHM April 12, 2017 at 10:49 am

As a family that looks for AP candidates that truly want to be a lifelong family member I can tell you that most candidates seem to really want that bond and definitely have in mind the postcard images you see in the agency brochures of the APs dressed up with the family on Halloween, matching Disney shirts at the happiest place on Earth, etc etc. Now, in our case we do that stuff so we haven’t had issues with misaligned expectations/disappointment. But, other APs come over all the time and talk about how they barely speak with their host families, how they wished they had a relationship (yes, it takes two) and that while they love the kids they can’t imagine staying in touch with the parents after their term.

So what’s the point? I agree there are some gaps in expectation setting. HFs expect Mary Poppins and APs expect the Brady Bunch. Other J1 work programs the participants are clearly told upfront they will have X hourly wage, work this many hours and pay for their own lodging of X per week and their own food. Sure $10 an hour sounds higher but not after you take out $125 a week for them to stay in a hotel room with 3 other strangers plus food plus any kind of transportation/entertainment. Unless they sit in the hotel, only eat Ramen noodles and do nothing when they are not working and work the maximum available hours per week (not guaranteed) there is no way they would ever clear $195 a week.

As much as the agencies do tell them it’s a job (some agencies are better than others at this) they still see the glossy photos and get starry eyed. And host families in expensive locales are attracted by the low cost and flexibility not necessarily the cultural exchange. I don’t think it’s a coincidence that fewer people host in our area (where the delta between hosting or daycare/nanny is not that much). At the end of the day it has to be a win/win regardless of what that looks like. Here, if we get someone that wants an employer/employee relationship then we might as well not host. I can hire a college nanny that has her own car, insurance, house, food etc for $10 an hour to shuttle kids around (we did that for several months after a burnout AP). We missed the experience and bonds with the APs. For our APs they get a second family for life, cheap cost of living, warm weather, more travel opportunities than most and a car with a curfew. ;)

There are APs that don’t want the family experience and just want to get paid and live in NY. So be it as long as both sides are good with that. I do think the rematch system desperately needs to be reformed and run by a third party that doesn’t have $ on the table. No matter how impartial an agency may try to be, in the back of everyone’s minds (HF, AP, agency) there are monetary implications.

Screening should be tougher and agencies should have to pay for tickets home for every AP that doesn’t work out so they stop bringing over unqualified candidates that ruin the program for other APs (because HFs drop out after having burnouts) and HFs that break the rules should be removed from the program and not be allowed to just move from agency to agency, ruining the program for multiple APs that paid a lot to get here.

They treat it like a traditional work J1 except these young people aren’t picking up trash at Disney World, they are caregivers for CHILDREN. They make more and get more perks because the program is higher risk/higher reward and only great candidates should come. There are already more candidates than host families. Screen harder and have fewer, more qualified candidates. This program has been around for decades. They should be able to profile success. And not necessarily childcare experience but leading indicators of success. I have seen many APs arrive that couldn’t put together a sentence in English. Completely unacceptable. Set the bar higher and the ones that truly want it will rise to the occasion. I personally think the whole program should be non-profit but realize from a customer service perspective that would most impact the HFs and APs (been there) and private sector does it better.

Net/net – the pay isn’t the problem with the program. In fact the pay I think is about the only thing that isn’t wrong with the program! It is aligned to a fair wage, takes into account the very large expense/sacrifice associated with providing a private room and board and as long as HFs and APs are following the rules it works. It’s when people don’t that it doesn’t work and that is where the program needs reform. Preventing/stopping burnouts (on both sides) and creating a clear, unbiased process for rematch when things don’t work. Unfortunately I agree with others, without a strong voice in legislation I don’t know that those things will happen and they may figure the program is more trouble than it’s worth and kill it…

HMAdvice April 12, 2017 at 1:10 pm

I agree on the wage TexasHM. There has to be an incentive to get an au pair and the affordability of the program is what they have going for it. An Au pair will never be able to compete against a traditional Nanny or daycare at the same market value (or even close). My point is that I believe the whole program was originally set up as a way for cultural exchange so you can argue that really this isn’t a job at all. There is a distinct beginning and end and it wasn’t meant for long term employment. I think we have lost our way on that because if you do look at it is an employer/employee relationship, that means a whole different thing. That is just my opinion though. I agree this is about finding balance.

Bitka April 14, 2017 at 5:31 pm

This program needs better regulations because both sides expectations. It should be promoted as working program with an opportunity to develop friendly relation with American family. Au pair shouldn’t pay for room. Hmm or maybe she should so she wouldnt feel homeless after the 10th hour pass. She should have bigger stipend so she could buy food for herself, phone card and transportation. Not waiting for good or bad intention of the family to provide those basics. Typical HF will say we don’t want you to worry about it. Frequent truth is that Au pair is a foreign adulth who have to rely on herself and provide all of the above by herself. HF requires maturity from Au pair but then they are trying to put her in the position of someone who can’t even decide what it’s appropriate to eat or disconnect her from the rest of the world. Au pair stipend should allowed her to save money for travel so she could use her 2 weeks of vacations.

TexasHM April 14, 2017 at 5:58 pm

Bitka agreed on your first statement but confused on the rest. Who puts the AP in a position where she can’t decide what to eat and is disconnected from the world? Our APs had plenty of money to travel in their 2 weeks and travel month. I am sure it’s partly because the cost of living here is low but again, if they raise the stipend we just won’t host anymore. The program is already very expensive for us as it is and frankly with each round of AP interviews their expectations seem to get higher and higher. :(

Bitka April 18, 2017 at 2:56 pm

The thing is hosts should provide food and since the minimum amount is not set in the agreement hosts can interprete this hovewer they want. In reality for the au pair it means only breakfast with kids monday-friday. Weekend nothing. Au pair gets tired of waiting untill hosts will provide basics for her. She is frustrated because she gets different staff that she asked for (starts spending at least 70$/week for food). Next she doesnt have modern cellphone from hosts (starts spending at least 50$/3 months for phone card). Good for her if she has her own iPhone/smartphone. Another thing providing transportation (its also not in the agreement). She will have to spend at least:
bus 12 $ at least/week going somewhere twice a weekend and she doesnt have to swith buses.

I have to mention that it takes ssoooo long for reaching destination by bus that sometimes au pair doesnt want to move.

metro 30$/week
car around 40$ a week.

Mostly au pair have to combine bus and metro just to gets to the metro by bus.
There worst part of it is that I expected to have those ‘basics’ from hosts. If there is a problem agency says talk with the hosts,hosts say talk to the agency. In my opinion councellors should make an effort to monitor situation /relation in the house.Hosts will say au pair doesnt have to pay for room and utilities. The thing is hosts pay only for utilities and 4$/hour. Sure au pairs can save some money but if I spend my stipend on food,tra cellphone,transportation and dont feel welcome in the host house what is the point of this program? What is more if the au pair will save some money she will mostly spend it on trips, clothes, cosmetics, entertainment in USA. Money that she earned will stay in that country. Hope au pairs will save some money to pay taxes after living USA.

HostDadCalifornia April 18, 2017 at 4:21 pm

If the stipend goes up, we would be out of the program as well and even more so if we have to start tracking and paying by the hour. Bitka, I think you are really losing sight of what the program is about. This is not supposed to be a career.

Just because the AP stays in the HF’s home does not mean they are not paying for housing. If the AP is eating with the family, as they should be, their food costs are minimal. Cell phones, while they have become the norm, are far from a necessity (we provide one to ours). Transportation (for someone working at home), vacations, clothes, entertainment, etc, are all easily contained in the budget. Can they AP go out every night? No, but people cannot afford that either.

NJ Mom April 18, 2017 at 8:33 pm

Bitka, These are all things you should have taken into consideration during the matching process. Not only for an AP position, but for any job. There are many different situations that will vary by family or by location. It is up to you to get an idea of what the lifestyle will be like. Families vary a lot, the same way AP vary a lot. And if your match wasn’t a good fit, perhaps you should have pursued re-match. Most families will provide perks above the bare minimum, and if you’re a great AP the family is more likely to go the extra mile for you. If an AP was only doing bare minimum, I certainly wouldn’t go out of my way or spend extra $ to go beyond the bare minimum either.

And about the food – was there food available in the house? Or was the fridge and cupboards completely bare? I have never been to a house with zero food. There’s a difference between having zero food in the house vs. having food but not to your liking vs. having food that has to be prepared. HF provides food, but if they are not home, you will have to prepare it yourself. Don’t expect HF to cook for you. If you are a picky eater, then yes, you will spend your $ on food. If that’s not acceptable to you, then perhaps the AP lifestyle was not for you – that’s not on the program or the family.

Dorsi April 19, 2017 at 1:27 am

On a lighter note, this reminds me of a common complaint in our house. “There’s no food here! Only ingredients to make food!!”

NJ Mom April 19, 2017 at 9:28 am

I make that complaint too (about my own fridge) and understand the sentiment. “There’s nothing to eat” really means “I don’t feel like eating anything here nor do I feel like cooking (and cleaning up after cooking)”.

Taking a Computer Lunch April 18, 2017 at 9:34 pm

Bitka, have you been an au pair since 2008? The last time one of my au pairs even wanted to use a phonecard was 2007! Since then, it has been Skype, either on my computer, but almost 100% on an iPad or Laptop that my au apair either brought with her or purchased within her first month in the U.S.

A lot of your points seem theoretical and not personal to me. Granted, there are shy au pairs who do not feel like they can bring up personal desires with their HF, just as there are obtuse HF who never bother to ask, “Do you want any special foods from the grocery store this week?” But, everyone has to leave Mom & Dad’s house sometime. I agree, it’s a hard transition for an au pair to go from being a coveted child in their parent(s)’ home to being an employee/semi-family member with a HF. It’s awkward. Your HF doesn’t know what you like to eat. The food is different. Guess what, it’s a cultural exchange.

And don’t get me started on the costs of public transportation/gas. If you’re an AP lucky enough to have full/near full access to a vehicle and your friends don’t, then pool your money. If you don’t, and have to rely on public transportation, then decide how far you’re willing to walk and budget accordingly. (Or agree to pool your money with a friend who does have access to a vehicle.)

Your au pair year is as much about negotiating a path to adulthood as it is for American children who go to college straight out of high school (albeit with a huge language/culture component thrown in for good measure). If you want something, then ask. The worst thing that can happen is your HF says, “No.” And if you really care, talk to your LC and see if you may turn it into “Let’s have a conversation.”

The stipend is the stipend, but extras, like Internet access, ability to drive a family car, having your own favorite foods, a cell phone – they may require communication. And really, learning to communicate effectively will serve you well for the rest of your life – whether it’s a professor, an employer, or a spouse!

I’ve said it before, and I will probably say it again many times – I wish I could still host an au pair, but The Camel is over 17 and the game is up. I really, really, really miss the flexibility of hosting au pairs. Even my absolute least favorite brought something to the table and made me a better parent!

Should be working April 19, 2017 at 2:45 pm

I would love to see some posts from the oldtimers on here who no longer post or not very often–“My last AP” or “Life after APs”. We will be done after this one, unless things in fall are much more difficult than expected.

TexasHM April 19, 2017 at 4:12 pm

Ooh love this idea! Maybe like a post mortem – now that they are no longer in the hurricane they can look around, take stock and share some musings on what they learned, loved etc… PLEASE make this happen!

Mimi April 19, 2017 at 5:00 pm

We are going to be done, too. Elder care issues coupled with kids old enough to be home alone means our needs are less and the program costs are getting beyond what we can justify paying. On the one hand I’m thrilled to not be interviewing anymore, but on the other hand I’m going to miss welcoming new members to our family and helping them discover themselves in a new country. It’s been such a part of our lives for a decade, and the prospect of life post-APs is really depressing right now.

Bitka April 19, 2017 at 6:29 pm

I wasn’t an au pair in those years.

Cost of food, calls/internet and transportation should be regulated and placed in an official agency agreement.What is more agreement shoud contain who pays for what and when. Au pairs could avoid delayed paychecks .
Au pair program is unclear and gives too many opportunities for violation. That is why councellors should monitor it by visiting au pair with host family together.
Au pair should be informed in person and written form email/phone if there is any change in her shedule. So the host family would respect au pair time.

From my personal experience host family gives a glimp of requirements and “priviliges” writing about them in familys guidebook. Even if the au pair makes her “job” good (if hosts will ever validate au pairs work) they can easily change their mind, forget about the “priviliges”. Why? Because its not in the official agreement .Giving an au pair “priviliges” and taking it back or saying things and not keepig the word will give simple result-lack of trust and respect. I hope an au pair is not going to wait untill hosts will remind themselves of perks that they mentioned in the family guidebook. Waiting for hosts good mood or negociate with someone who is not reliable seems pointles. Again, things that au pair is entitled to and hosts must provide are weekly stipend, room and 500$ for education. Probably au pair will get 250$ in the first half year of her stay. I can imagine hosts try to make au pair dependent from them .Stop threatening your au pair that she will loose priviliges from you. First hosts are giving perks than taking it back. Hope that it works for them with young au pairs. I can guarantee you that older au pair would do the rematch or would be staying away from hosts while providing and paying for ‘priviliges’ by herself.
If You already can’t afford an au pair don’t participate.
If You see an au pair as an easy way to save money don’t participate.
If You are not interested in cultural exchange don’t participate.
Don’t make someones year miserable. The family that I was working for was middle/maybe upper class. I don’t know how much money would have the host family earn so they wouldn’t search for savings in au pair existance. If You claim as a host family that you prefere high standard of living don’t push your au pair for low standard in your won house.

I hope some of the hosts here feel ashamed to pay 4$/hour and calling au pair employer. It’s not a voluntry .Please specify the conditions of the au pair programme .Consider being staying at home father/mother rising your kids. Make an influence of the government for free preschools.

Statement there is nothing to eat could also mean show me how can I prepare things to eat from the supplies that you use. It can also mean You have no idea what do I want and I see that you are not willing to help me so stay away from it.

NZ HM April 20, 2017 at 3:32 am

Oh dear, you sound bitter! Very sorry to hear you apparently had a bad experience but I can only second the comments above: part of being (becoming) an adult and growing up is learning to look out for yourself, to speak up, to communicate and to negotiate a better deal if you’re unhappy with your current situation and not always just blame others for your misery.
It’s very symptomatic of today’s society to point out where others should have done better and expect everyone else to fix things rather than taking responsibilty for your own actions and decisions: if there is an issue: talk about it, try to fix it or suck it up; if it is really bad: leave.

I’d also daresay you are talking to the converted in this forum as most here are, from what I can gather, fabulous, loving, dedicated host families that are constantly trying to better themselves and their relationships to their aupairs: that’s why they are here.

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