Most Host Families know about the ongoing lawsuit wherein the US Au Pair Agencies are being targeted in a class action lawsuit brought by a law firm “on behalf of” au pairs. This lawsuit has been wending its way through the system with occasional flareups of media attention.
Most of us have been assuming that the lawsuit will be settled, ended, and/ or adjudicated, and that upon closure there will (or won’t) be changes made to the US Au Pair system. In other words, we’ve been expecting a formal decision to be made and then — if needed — to respond to that decision.
It makes sense to me to proceed as normal until a clear decision has been reached, which is why the email I received today from a California family is so disconcerting.
Details are below, but cutting to the chase — this family’s agency is asking them to change their au pair management strategies AND to increase their payments to their au pairs. It’s not clear why host families should be doing this in advance of any ruling and especially not (in my opinion) when families already have contracts with agencies and Au Pairs.
Here’s the email, in total, from the family. I’ve bolded the elements that seem most critical and that we should discuss… please weigh in…
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Dear Aupairmom,
We have over the years very much appreciated the information posted on your website. It has helped us with countless questions and issues we’ve had, and made us feel that we were not alone.
Now, we are faced with an issue that is big enough for us to try reaching out to get some thoughts from you or your readership.
Yesterday evening, we received an email from our agency, CHI Au pair, one of the 15 Au pair agencies that is being sued over fair labor and wages.
In this alarming email, it stated that for families in the state of California, the agency lawyer is recommending that host families comply not just with US Dept of State regulations for Au pair programs, but stricter California state laws on labor and wages.
Effective immediately, we are supposed to:
- keep detailed logs of work hours,
- issue official pay stubs (using a payroll company was recommended),
- pay the minimum wage ($10.50/hr here),
- pay overtime wages as appropriate, and
- add worker’s comp to our insurance policy.
Also, host families are being asked to give back pay dating to Dec. 2017, according to the new rules to the Agency’s new concerns.
Many important details were not included in this email, leaving us to have to figure out how credit for room and board works (e.g., what’s the appropriate board for our locality, which is surely more expensive than other towns?) and how to apply labor laws as an official employer in the state of CA. Today I will also be writing them an email asking for clarification on a number of issues that were unaddressed.
It surprised us that even though a settlement has not been reached (as far as we could tell by internet search!), our agency expects host families to start conforming to a different set of laws than what we had originally contracted for.
Are we missing something?
In the communication, we were told that these new instructions were “to protect ourselves from any legal consequences” down the road from the pending lawsuit.
As I understand, the lawsuit is against the agencies and not host families. So,
Why is it that host families have to protect themselves?
We are alarmed by the suddenness of these changes., and the sharp We are also concerned by the increase in costs that many host families will face with this “effective immediately” timeline. We and other host families don’t have the money in our family budget to increase our childcare expenditures by $6500 to & 7500 dollars a year (45 hours by $3 additional dollars per hour by 50 weeks).
Is our agency, CHI, the only one issuing these new instructions to host families, or are other agencies advising their host families to follow new guidelines?
I hope to hear from other families, and especially from the lawyers among the host parents.
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We are with Aupaircare, we live in California, and we have not been asked to make any of these changes
Wow. Just wow. I predict that Chi Au Pair will start losing families. Min wage in CA is $11 / hour for 2018. Many municipalities have even higher minimum wages (for instance, San Francisco is set to go to $15 / hour in July). It’s my understanding that under the FLSA, the value of lodging can’t be deducted from the wage (unless specific conditions are met that the law suit folks argue are not). I am in rematch and currently registered with a couple of agencies, neither APC nor CHI, and we have not been advised to make these changes either. If we were, the cost of childcare would be beyond our means and we would have to drop out of the au pair program. No clue how we’d make ends meet in that case. This simply can’t be the right answer from a policy perspective….it does the economy no good if some big percentage of the work force had to stop going to work because we can’t afford childcare.
Does anyone know where this case stands at the moment? Seems strange to me that you would change course without formal documentation. An email just seems suspect. Idk. I would ignore but as stated above, I’m more inclined to wait and see.
I’m 100% sure of its accuracy
California has a specific set of laws pertaining to domestic employees that is not addressed by CHI in this email to the host family. THis is likely because CHI does not want to be on the hook for providing legal advice to families, and is taking the (far) more conservative approach to this matter.
Under California law, if the federal does not prevail, the domestic laws kick in. These are available here: https://www.dir.ca.gov/dlse/DomesticWorkerBillOfRights-FAQ.html
Shorthand is:
(1) minimum wage would apply;
(2) There are different overtime standards for domestic workers (see FAQ in attached website)
(2) Certain deductions can be taken for room and board; host families should very much consider contacting legislators about raising these, as they are ridiculous, at least in my jurisdiction;
(3) Other “perks” common for host families customarily provide to aupairs are not required under CA state law, and so long as the costs of those are handled in accordance with CA wage and hour (e.g., can they be deducted? check the rules), are also a deduction. These would include: separate accomodation expense on vacations; non-working vacations; phone purchase and phone subscription; car insurance as attendant to personal use.
Very much a disservice by CHI to leave host families hanging on this – they’re covering their own a$$es while tossing you out confused. My very strong advice to all host families has been and remains: stop hosting until this sorts out.
Very astute points, especially for us Californians. Thank you @Attorneyhostmom!
@AttorneyHostMom – you’re obviously more steeped in employment law than I (tax lawyer here!) so I wanted to confirm …. you really think the right answer is to stop hosting until this is sorted out? That’s sort of where I’d gotten to a few months ago, then the reality of being able to afford approximately 16 hours of child care / week with the same budget as the au pair costs set in and I hosted a rematch au pair for a few months. Ugh!
Also to add: very unfortunate to put this program under the “employment” paradigm as opposed to the “exchange” program, which is what I loved about hosting. I can’t imagine nickle and diming about vacations or car use, for example. But we are where we are, and the program is unsafe in California.
If you do the same analysis under other states, however, you may get very different results than California.
For example, New Jersey permits federal minimum wage to apply, and has deductions on room and board. THat information is here: http://www.lsnjlaw.org/Jobs-Employment/Domestic-Workers/Pages/Domestic-Workers-Info.aspx#.Wse7-ltSzIU
Note that deductions on room and board can reduce below minimum wage in NJ.
California host families may consider lobbying for changes to the domestic worker’s program to make live-in childcare reasonable and affordable; New Jersey, at least, has that covered.
[Warning: super long] I was all gung ho about doing the au pair program when I saw this post about this on-going class action suit. This gave me exposure to the whole issue of whether au pairs are actually employees and should fairly compensated as thus, or whether the au pair program is really truly a cultural exchange program. Given that au pairs work up to 45 hours a week and a lot of au pair agencies tout it as an affordable child care option rather than emphasizing the cultural exchange first and foremost, it really does sound a lot more like a employment program than a cultural exchange program. Btw, the US is one of the few (only?) countries that allow au pairs to work more than 30 hours a week. That was a bit of a buzz kill. But given that I am a neurotic thinker type, I had to really look into it and see if there WAS a way to participate in this cool program but be kosher about it.
After all this reading, I now have concerns with paying just the $195.75/week minimum stipend ($4.34/hr), which doesn’t even seem to be in accordance with the current US Department of States’ language about weekly compensation. The language states that agencies should be ensuring au pairs are “compensated at a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the Fair Labor Standards Act as interpreted and implemented by the United States Department of Labor.” Fair Labor Standards Act means at least minimum wage (local or state min wage trumps the fed min wage, $15/hr in my case, or $600/week for 40 hours), overtime pay for over 40 hours per week (1.5 times pay, or $22.50/hr, for 5 hrs per week, or $113), and misc record keeping (including hours worked). So that would be ~$713/week plus tracking of hours and paperwork.
There used to be a formula sanctioned by the Department of State that got the agencies to $195.75/week. In 2007, a letter from the State Department sent to the agencies indicated that they may deduct 40 percent of an au pair’s compensation as the room and board credit, thus bringing their weekly stipend for 45 hours a week to $195.75 under the federal $7.25 an hour minimum wage. The Department of State has since withdrawn that notice and are now saying that au pairs must be paid in accordance with minimum wage laws. In the end, if your state or locality has a higher minimum wage requirement, it trumps the federal minimum wage rate under FLSA, and you’d have to calculate your own credit for lodging.
There is this idea that you can credit for lodging provided, and FLSA does have such a provision (called section 3(m) credit). It is debated whether this should be applied in the case of a live-in care giver. But even accepting the credit as OK, and even in the high cost of living area of San Francisco, that wouldn’t bring the weekly stiped (based on minimum wage) down to $195.75. The fair market rent, according to the gov, for our three bedroom house would be $4,070. Using a generous 1/3 rate for the au pair’s one bedroom use of the house, that would turn into roughly $309/week credit.
So that would balance out to a $404/week stipend, which is much higher than the $195.75/week stipend. The calculations will vary by state or locality, but I think in a lot of cases, it would be above the minimum stipend.
It just makes me wonder, to be entirely compliant by the current DoS rules (regardless of wheter the au pair agencies are enforcing them) and treating an au pair fairly should I be paying $404/week stipend instead? This is significantly more- putting it a lot more than a day care but slightly less than a nanny share, which seems about right given the level of individual attention but lack of experience. Or treat it as a true cultural exchange with less emphasis on the job, employing only for 30 hours of week for light child care, giving them time to really explore the area and learn about the US. That seems more family-like and exchange. That would mean hiring additional help to supplement, but would be more in the nature of a cultural exchange, at least by the standards around the world.
My feeling is to go forward with a more current interpretation of the stipend through the lens of FLSA, acting in the spirit of being a compliant employer, while still encouraging and helping them to explore and having the cultural experience and exchange they were promised when they paid to be part of an au pair program. It sort of strikes the balance between what the program seems to lean towards (a short-term, lower wage worker immigration program for youth), and what it aspires to be (a true cultural exchange program). In the end, I hope that the courts and government find a solution that brings greater oversight and protections to au pairs, while still maintaining a program that can be enriching and helpful to families with kids in the US. Especially given the dire state of pre-K care in the US! We need all the options we can get.
Anyway, I’d be interested in any thoughts and counter arguments you might have. I tend to get pretty stuck in my reasoning and point of view, and would welcome seeing if you guys as experienced au pair families and au pairs feel about this issue.
Link to the J1-Visa Au Pair guidelines: https://www.uscis.gov/ilink/ocView/22CFR/HTML/22CFR/0-0-0-1/0-0-0-3590/0-0-0-4833.html
Link to the DOL housing credit FAQs:
https://www.dol.gov/whd/homecare/credit_wages_faq.htm#10
The $404/week stipend in this example does not take into account all the other things HF provide the AP. Considering the AP living independently as a renter of a single room in a shared apartment (think back to the days as a college student sharing an apartment for example), AP would pay for everything related to daily living … food, cell phone, car insurance, and even toilet paper and replacing burned out light bulb and that’s not even touching on all the dinners out together and entry fees to recreation activities. Room cost is just one variable that chips away at the gross minimum wage earnings.
@HMof2 Actually, the $404/week stipend above would be too low actually, taking into consideration CA domestic bill of rights that @Attorneyhostmom cited above. (https://www.dir.ca.gov/dlse/DomesticWorkerBillOfRights-FAQ.html) When using lodging and food credits against the minimum wage, there are pretty strict rules about the max you can apply against the minimum wage. (It’s much higher if this is applied to wages amount above minimum wage.) So new calculation would be $713/week (full 45 hours) – $49.38/week (room 2018 max) – $81.20/week (food 2018 max) = $582.42/week. And whether you could charge for lodging is questionable because “If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein.” So maybe along the lines of $631.80/week.
I mean, that’s a lot more than the Au Pair stipend if you use the full 45 hours, but I think it’s fair given that I live in an extremely high cost of living area. I agree with the higher minimum wage here and some of the restrictions on taking credits out of minimum wage. (Otherwise employers could just nickle and dime the hourly wage to an extremely low level, and even at $15/hour, that’s not going to help anyone move very far forward in life around here.) And in this case, I’d be getting 45 hours of individual 1:1 and sometimes 1:2 care for my kids. It would cost way more than minimum wage to get that in this area.
I don’t see why these same protections and rules for domestic workers (live-in nannies, elder care givers, etc.) shouldn’t apply to foreign workers as well. Au pair program has only gotten out of these labor protections and rules because it’s supposed to be a cultural exchange program… but at 45 hours a week, how au pair agencies frame the program to prospective host families, and some of the verbiage that the department of state and IRS has around au pair wages, I don’t know if the argument will hold up in court. Unless they reduce the max hours per week allowed and again go back to the “cultural exchange with light household help” roots of the program. And the agencies could possibly justify their super high fees to both the families AND the au pairs (which should instead be going towards the au pairs pay if this is really deemed a foreign worker program).
I do agree that if it were a true cultural exchange program, then there would be a lot of extras that would be included because the families would be treating the au pairs as part of the family, paying for enriching experiences for the au pair, not as you would for a regular more-than-full-time employee. And a smaller stipend for pocket money spending would make sense then, as it’s not supposed to be a wage.
Should be interesting to see what happens. As @Attorneyhostmom says, the au pair program, at least in its current form, might not survive California, or have to change drastically to continue. We shall see!
Our family does treat it as a cultural exchange and our AP rarely works more than 30 hours a week (some weeks she doesn’t work at all, and they aren’t technically vacation weeks). We pay for everything (skiing, lots of eating out, phone, etc), and include her in all family activities. One big problem with the lawsuit is that even families like mine, who view the program through the cultural exchange lens (I describe it as half exchange student, half nanny), will get screwed. We will be so sad if this program ends.
I don’t think they need to end the program to address some of the concerns raised by this suit. Hopefully the government can find a nice middle ground, like reducing the max hours per week to something more exchange-like (30 hours perhaps) and making sure au pair agencies are advertising and working with host families as if it were an exchange program. Also providing more oversight and protections for the au pairs. As the program stands now, there is just too much room for (hour, labor, wage, personal, etc.) abuse and not enough protections for the au pairs. Not to mention host families.
I definitely think there is a larger problem around affordable full-time child care for working parents which needs to be addressed! (Especially for pre-K kids!) But a cultural exchange program probably is not be the way to band aid that need for more government (financial and logistical) support in this area.
I agree. We ran the numbers for what an AP costs us (perks plus low-balling housing/utilities) factoring in CT minimum wage for the stipend (without overtime) and it came out that what our AP’s should have been clearing per week was ~$220. This is only $10 less than the cost per child (<3) at the local daycare.
I suppose but at your standard office job is your bathroom use/the electricity needed for your computer/the power you use to store your lunch in the fridge/the cost of heating or cooling the office etc. etc. taken out of your paycheck each month? Would your boss remind you of these things if you asked for a raise? If you need all of those things to do you job it’s your employer’s responsibility to provide them, right?
Basically I think the US au pair programme is pretty exploitative in the way it’s run. I don’t see how you get to see much if you’re working a full time job with 2 weeks of holiday in a year but that’s not necessarily on the parents. The hours totally go against the spirit of the programme and the grey area au pairing occupies is 100% taken advantage of by agencies. 45 hours is a full time nannying job, not one for a young person on a cultural exchange in a new country. They should be capped at 30 and like in the EU the pay should be set at a certain amount that doesn’t include room and board (eg Italy it’s 250-300 EUR a month cash in hand).
Looks like the agency is anticipating that the lawsuit will be successful and is trying to cover its own rear end, but in a way that makes no sense really (not a lawyer though, so don’t know what ‘legal sense’ is).
Our agency also recommends workers compensation insurance, and having pay stubs and logging hours is not in itself a bad practice. But minimum wage? And what is it with “overtime pay”–we aren’t allowed to ask for more than 45 hrs, that has been a mantra this whole time!
In CA, any hours over 40/week would have to be compensated as overtime.
Hmmm… and what if overtime means over 40hrs?! We always have to use all 45hrs so we would pay min wage and 5hrs overtime every week! We would leave the program immediately. No way we could afford that.
@WCO HD – I actually think overtime might be anything over 8 hours in a day and 40 hours in a week. So if you’re using 4 days at 10 hours each, you’re already up to 8 hours of overtime, plus an additional 5 hours for getting up to 45 hours permitted under the State Dept rules. But it’s true, if you’re using 5 days at 9 hours each, then you’ve just got the 5 hours of overtime. I’m not an employment attorney, but I had to look at these rules a bit when we had a household employee before we started hosting and I think that’s how it work, at least in CA.
I didn’t even think of the 8hrs/day… ugh. We do 4 10s with a 5 hr half day. That would be brutal for our cost.
If they get minimum wage, does that mean we can charge rent?
Minimum wage + room + board + car insurance, etc, etc = Time to switch to a nanny
Have to agree here. Our car insurance costs alone for the younger AP’s are are a quarter of their yearly pay and I don’t believe they understand or appreciate that fact. It would be less expensive to give them an Uber stipend then let them drive our vehicles or perhaps just deduct that too….
We are with Au Pair Care, and other than an email about a year ago, they have said nothing about the lawsuit.
We live in Southern CA. Since our kids started school, we use about 37 hours per week vs the 45 max. Also, the fair market value of renting a room in a home in our area is $700-900 per month. The cost of insuring a foreign national who has never had a US drivers license before is the same as adding a 16 year old to the policy. If we had to follow complicated federal and state rules about wages, workman’s comp, pay stubs, etc, then I would also start charging fair market value for room and board. Which essentially means that we’d leave the program.
I had no idea about the lawsuit, and I wish I did my research before getting our first au pair a few weeks ago. If we have to switch to minimum wage my hope would be that we could charge rent. If it’s minimum wage and free room and board, we would leave the program and just get a domestic nanny for our 5 month old and continue to send our 3 year old to full day preschool.
Not to mention that to calculate room and board credit, meals are to be tracked and credited against the Au pair’s wages. Each breakfast, lunch, and dinner has its designated cost per CA law, so these can be tallied up and included on the daily logs and the paystub. Just awful. Talk about nickel and diming. So I see this model, the Au pair could be incentivized to skip meals which completely goes against the concept of cultural exchange and being part of the host family. We provide cell phone, personal use of car, and generous (>>2 weeks) paid vacation time but now these can also be counted against her wages. We are with CHI and will be putting up with this until our Au pair’s year is up.
I have had au pairs for 5 years. If we had to pay back wages, we could not afford it. The fee would be astronomical. We just would not pay it we could not afford to pay it. My au pairs were like family – they told me they received emails from the plaintiff attorneys and they didn’t respond. I am hoping the lawsuit and the eventual appeals will take a few years and by that time I won’t need an au pair anymore!
Does anyone know if other categories of J-1 Visa holders are looking at the same wages or restrictions? My kids’ YMCA camp employs a huge number of seasonal workers – and I bet they clear about $200 a week after room, board. Also required to live on site.
Ahhh…. Google knows.
https://www.interexchange.org/travel-abroad/camp-counselor-usa/
Here is an opportunity to travel to USA, work in a camp for 9 weeks and get….$1,750!!! Camp counselors are working far more than 10h/day and are sleeping in the same room with kids, basically “on-call” all night.
So, how could this program continue if the J-1 Au Pair is illegal??
My recommendation would be to 1) proceed as normal based on the actual program guidelines listed by the individual agencies until an official decision is made and clearly communicated to all agencies and program participants or 2) stop hosting until it’s been resolved.
FWIW, we’ve stopped hosting. It’s mostly due to the amenities arms race and the hassle of finding someone who will house with 4 kids (only responsible for 1 the majority of the time) in a small New England town. We always treated our APs as members of the family and gave them perks (gym membership, dedicated car, gas allowance, etc.) but the sense of entitlement was outweighing the benefits of the program and we have saved money when we factored in the savings from utilities, car insurance, etc.
I think that the program has been taken advantage of by both HFs and APs which has almost ruined it for all involved and it makes me sad. The majority of our APs from our 10+ years of hosting still visit us regularly and vacation with us because these were lifelong relationships we established and not just about childcare needs.
It seems to me (not a lawyer and not studying the fine print of my old agency agreements) that the agency cannot suddenly require families to pay more and do all this other stuff–when families already signed an agreement that lays out ALL their obligations. Maybe in the fine print there is something about “if the laws change, your agreement with us will also be changed”, but then I would imagine families would have the option to not continue? Seems to me there is no reason to pre-emptively
In any case, if these rules go into effect, these agencies are likely out of business, or will be extremely reduced, or not allowed to operate in their current form in many states. Does the AP program deserve to be terminated, in effect? CASF above thinks so, i.e. that it is a work program more than an exchange program. I waver on this myself. If all HFs were like us, caring about being good HPs, then I would say it deserves to exist as it is. But so many HFs are small-minded and ungenerous, and in their hands it is a work program.
The agency can’t impose new requirements on HFs during the period they’ve already contracted for, but the issue here isn’t HFs’ obligations to the agency; rather, the agency is warning HFs that they may have obligations to their au pairs under federal/state/local law that go above and beyond agency requirements. Depending on the outcome of the ongoing litigation, there could conceivably be other lawsuits in which au pairs (or law enforcement agencies that assert worker rights) directly sued HFs for back pay, penalties, etc. I don’t imagine that’s especially likely, but I wouldn’t rule it out. This is one of a few reasons we aren’t hosting anymore, the others being that we couldn’t imagine finding anyone to compare with our first (with us for two years) AP, and that I was pretty eager to have the house to myself again. (Though I do still fantasize about inviting the ex-AP to room with us if she ever decides to come back to the US for grad school or whatever…but that’s another thread!)
Following up to myself to add that as my screen name indicates, we aren’t permanently ruling out hosting again — but definitely waiting to see program rules sorted out first. Just hoping my now-three-year-old won’t already be a teenager by then…
We’ve been hosting in CA since 2011 and have a new au pair arriving next month that plans to stay 2 years. I’m going to continue following the program rules. Follow the stipend set out by the federal government. The au pairs dont have a work visa and we shouldn’t be subjected to follow CA employment rules because they’re not working as an employee in this state. I’m going to have to just hope for the best with this strategy because we dont have any other option!!!
I’ve been following this thread closely as our family has also been concerned about how we maintain compliance with state and federal labor laws. Not being a lawyer, my opinion on all this is merely self / Google informed. I keep hoping a CA labor lawyer will join the discussion and provide a definitive opinion!
To me, it seems like the key question in CA is whether au pairs (as a J-1 visa immigrant governed under a State Department program) are covered under the scope of the CA Domestic Worker’s Law. The bill does not explicitly mention au-pairs, though it does explicitly cover “live-in domestic work employees and personal attendants”, the definition of which seems to align with what au pairs do. My spouse would argue that the State Department program guidelines would take precedent. I would argue that the State Department refers to the FLSA, which explicitly says that local and state minimum wages apply if they are higher than the federal minimum wage.
In Massachusetts, CCAP filed a challenge to the MA Domestic Worker’s law under the premise that they were a US State Dept cultural exchange program in MA District Court. (The MA Domestic Worker’s law also did not explicitly include au pairs in their scope, but, similar to California law, the description of domestic worker includes people “paid by an employer to perform work of a domestic nature within a household”.) Their case was dismissed by a federal judge in Aug 2017, but they have filed an appeal. (source: http://www.mataharijustice.org/news/2017/8/30/victor-for-au-pairs-au-pairs-continue-to-be-protected-by-domestic-workers-law; https://www.law360.com/articles/1021526/au-pair-host-families-back-co-in-mass-labor-law-appeal – sign in required)
As a non-lawyer, I’m interpreting the fact that there’s an appeal in process in Massachusetts as indicating that the issue is not yet legally resolved. (The Colorado class action was limited to only au pairs between 2009 and 2015 who were sponsored by one of 6 specific agencies, which I guess makes it hard to interpret as general precedent. I cannot find out if it would in any way imply anything about how the law in California should apply.) In short, it seems like there’s no clear guidance for host families and we’re potentially liable if it turns out that CA labor laws apply. It would be nice if the au pair agency could provide more guidance, though I understand why they can’t or won’t do so at this point.
Sigh. Theoretically, I fully agree that domestic workers should be protected. But it would definitely make getting sufficient flexible childcare a great deal more finally difficult for us.
Interestingly, the NY Domestic Worker’s Bill of Rights explicitly excludes au pairs:
“The only exception is au pairs hired through the federal au pair program and admitted into the United States under a J-1 visa, which are subject to special federal rules.”
Source: https://labor.ny.gov/legal/laws/pdf/domestic-workers/facts-for-employers.pdf
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