Suing for Breach Of Contract?
by cv harquail on May 18, 2016
Apologies for being out of it this past week-– not to mention, avoiding any conversation about the controversy surrounding the Au Pair with the cancer diagnosis and her Host Family’s efforts to keep her in the USA for care. I’ll post about that in a few days.
In the meantime, let’s vent about another contentious issue:
… When your Au Pair breaks her commitment to stay a full year…
and offers a frustrating reason for leaving, that’s unrelated to your family’s situation. 
A Host Mom writes:
I am tempted to sue my au pair for breach of contract. Has anyone ever done this successfully?
We have always treated our aupairs very well and never had an issue with any, except for this last one. Our aupair has broken up with her boyfriend and has decided it’s too painful to stay anywhere close (they live 2 hours away anyways) anymore, so she is going into rematch. Trouble is this is her 9th month.
Our contract with both aupair and agency states there is no rematching after more than 6 month. Therefore, we don’t get any of our agen
cy fees back and only would get a small credit ($600) towards the new au pair who would have to stay a full year. Our kids are starting school this year so this was supposed to be our last aupair.
I am tempted to sue our aupair for the $1600 we are out because she wants to stay in the US and get married and a suit in small claims court isn’t too much of a hassle in my mind. I also strongly suspect she wants to rematch now to go to a larger city to find someone to marry her before her visa is up. Her sister did something similar several years ago, which I didn’t find out until our aupair was already with us for several month. Any advice for families thinking of suing their aupairs for breech of contract?
Any advice would be appreciated. ~HostMomOnHerWayToCourt
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{ 36 comments }
Well, that’s a new one. What is your agency saying? If the contract states there is no rematching after 6 months, and the reason she wants to leave is unrelated to your family, isn’t it up to the agency to put their foot down and say no — your choice is either to go home or stick out your commitment?
I wonder what agency says no rematch after six months. Things can go south at six months, HMs can get pregnant, situations can change.
Interesting with small claims. Please keep us posted.
The reality of the situation is you will spend WAY more time, effort and money than you will ever recoup, so the only reason to proceed with suing her is revenge. And while I get that you are angry and hurt that she has turned out to be so unreliable and disloyal, you need to take the higher ground.
Move forward with getting her out of your home, give her an honest and forthright evaluation (good parts and bad parts) so that if she does rematch, the new HF honestly knows what they’re getting. And then, move on.
I agree with massmom that if there is no rematching for you after 6 mos, there should be no rematching for her either. However, I would offer up that you, yourself could look for a rematch AP who has 2-4 months left and finish out your year that you’ve already paid for without the expense and hassle of taking on an AP who is contracted for longer than you need.
Good luck moving forward.
I think you’d do better dealing with the agency – if they’re letting her rematch, then they’re violating their own policy. No rematch should mean that she stays with you or buys her own ticket home.
You could just threaten to sue her for the 1600 dollars? I am sure that would make her stay. That is around 6 months of my au pair allowance (although I realise she get will be paid more than me.)
I don’t know the law well enough to comment but I personally hope that there is no such penalty for quitting a job earlier to take another one. It would leave au pairs, who are often from not so wealthy backgrounds, in a very vulnerable position. I am sure HostMomOnHerWayToCourt is just the sweetest HM in the world but what about families that abuse their au pairs? I wonder what evidence would be needed to prove that the au pair had enough reason to live and is therefore has not breached the contact by leaving before the 12 months.
I find that au pairs don’t often realize or appreciate that host families pay UPFRONT all the agency costs and myriad feea, and that these costs nearly equal a year’s stipend for the au pair. So rematching and reneging on the commitment is costly – in dollars, time, and inconvenience to hat families. There is something to be said for a twenty-something learning to honor a commitment.
I guess the hope is that au pairs realize their host families are abusive before 6 months in and plan their rematch accordingly.
Not that I agree with putting a limit on rematch timing. As already stated, lots of things can happen in months 6-12, on both sides.
I’m pretty sure that this is Au Pair Care’s policy, based on a different HF experience I read about elsewhere.. but I’ve never been with that agency so I don’t know for sure.
The H1 visas are pretty bad too- there is no way to leave a bad work situation without giving up your visa and going home. Au pairs have it easy compared to H1, although they aren’t making as much money.
When our AP asked for a rematch, I went through all the stages of grief…and yes anger was one of them…so I can see where the feeling of wanting to sue is coming from. But trust me…taking the high road is always the way to go…it really will make you feel better in the long run.
Is there still time to talk to this AP and see if she will reconsider? Maybe offer her time off for a long weekend to grieve this break up. Maybe this is just a snap decision that after a few days of distancing herself from the situation will get her to reconsider… Or maybe that is just wishful thinking on my part.
If she does go through with this…make sure the transition document gives a fair and balanced representation of this au pair.
I do have some questions though…if the agency contract says no rematches after six months, how is the agency letting her rematch? If this agency is doing something against their contract then I wonder if you really want to sue someone if the agency is the one to go after…not that I am really advocating for this…but at least the agency might have some money to pay you if you win since most of our APs would not of had that much money to their name. But before you sue, try negotiating with the agency some with contract in hand and seeing if a different arrangement can be reached with regards to the refund/credit if they do place this AP with another family.
Also, when we were in rematch I was surprised how many au pairs had only three months or less to go with their year. You do have a good chance of finding an AP to finish out the summer with, though it sounds like you might need to switch to a different agency to find these short time APs.
Don’t sue. Even if you took her to court and won, you probably wouldn’t collect a dime. It’s not like APs are rolling in dough. Instead, push your LCC and HQ to help you make the best of it. There’s no in-country APs in rematch who could take care of your children (I’ve never had any success – but that’s because even with the biggest agency, the venn diagram of APs in rematch who are special needs willing and who have actual special needs experiences is invariably nil).
Make sure you get to do a write-up that goes into her file. Don’t be mean – just state the facts. Any prospective HF who reads, “HM thought AP did a reasonable job but was flabbergasted when AP broke up with boyfriend and demanded to go into rematch. HM suspects that AP wants to marry before her visa expires, as her sister has done.” might think twice about matching.
I assume, even if your AP were to change her mind, that your level of anger might not permit the relationship to be salvaged, but not all APs end up finding families in 2 weeks. It could pass that you might continue hosting your AP until she finds a match – or you do. Only the LCC can predict the odds of her being sent home.
As a litigator, I’ve never met anyone who feels better after a lawsuit like this not least because a judgment is not the same thing as a collection. The emotional drama of litigation with someone you know personally is draining for most people and the result is never as satisfying as taking the high road.
I agree that a lawsuit is probably not worth it. Smalls claims is easy, but you may not even collect anything (believe me- I am still waiting on a $5000 judgement I will probably never see).
I suspect that if you are willing to sue AP, she was not that great to start with. If she was truly a gem, you would feel for her, and she would not let you down. You might be better off without her.
How about reaching a middle ground? Tell her she cannot go into rematch until you (both) find a suitable successor for the next 3 months. Put her to work to scan the Facebook forums, talk to friends, reach out to candidates and do initial triage based on your requirements, set up appointments for you. After all she is the one who wants to leave, at least, she can be helpful and try to prevent leaving a big mess behind.
As another lawyer, I echo the input that suing her is not worth it and won’t make you feel any better in the end. It’s a hassle and you won’t be able to collect. CERTAINLY don’t threaten to sue her to try to put pressure on her to change her mind — if it works, you now have a resentful AP who likely feels like a hostage caring for your kid(s).
I also wonder whether this could possibly be a correct interpretation of your contract with the agency — YOU can’t rematch after 6 months absent a penalty but the AP can do so (and you suffer the penalty alone)? That really cannot be. And if it is, please tell us your agency so we can all avoid it like the plague from now on.
I would double check this and read the contract language very closely and also push the issue up your agency’s chain of command if it is indeed the position your agency is taking.
If nothing else, I like the idea of PP who suggests asking AP to give you time to find a suitable replacement. Getting a rematch AP to help finish your year (even a part of it) should help remove or reduce whatever the penalty is, if there is one as you described. Absent her cooperation, then yes you should be honest in your rematch description of her, including your concerns about her motives.
I was with the agency like that and mine was Interexchange (also called AuPairUSA). However they were very responsive in their customer service, on certain issues, so it is really worth it trying to push back on the penalty with the main office.
I agree that suing the AP isn’t worth the time and frustration you’re likely to endure, but seeking relief with the agency is something I’d pursue for the reasons shared above. I would also make sure that rematch documents reflected what you’ve shared about your suspicions and wouldn’t sign off on anything that didn’t reflect your concerns.
IS she breaking her contract though?! Her contract is with the agency, not with you and the agency is LETTING her do it, so how is SHE breaching the contract? (I’m not saying her reasons aren’t absolutely ridiculous of course!)
Isn’t the agency breaking the contract with you? You signed with them and THEY are violating the terms by letting her, aren’t they? So wouldn’t it be much more reasonable -and probably also more successful- to sue them and not her?
It’s important to realize, that at least in the US, “contract” doesn’t just mean the piece of paper everybody signs. If you talk with someone and offer them a job, they agree to take it, everyone is clear on the terms and you come to a mutual verbal agreement, in most cases, violating that agreement would be considered a breach of contract in the US.
In the US, “my word is my bond”.
Not exactly. Employment contracts aren’t the same as other contracts. There is a Constitutional amendment on this. Regardless, I don’t see how the AP has breached the contract. Both sides have a right to part ways for pretty much any reason under the sun.
Right and if the agency’s policies says a rematch isn’t possible after 9 months and they let her anyway, shouldn’t they be made to make sure the HP don’t have any financial issues with that?
I do not know for a fact, but I strongly suspect that the agency policy is the real problem here- there is nothing to stop au pairs from initiating a rematch (except fear of not finding a family and getting sent home), but host families lose the right to rematch after 6 months.
If I am wrong about the agency policy perhaps someone will correct me.
I get that you have spent a lot of money on this (as has the AP), and you may not like her reasons, but suing just strikes me as kind of a quest for vengeance. Like, sure, you wanna get the costs back – but you almost certainly won’t, because the AP is reeeeally unlikely to have the money. So with this in mind you are spending all this cash to pursue a lawsuit, which won’t actually win you anything.
It seems to me that there are only a few real motives for this:
– You want your AP to learn a lesson – or similar.
– You feel shown up, or tricked by her, and you don’t want her to get away with it.
– You want to prove that you were in charge, and she can’t just flout your authority.
– You’re angry and want to lash out and hurt her back.
– You want her to be inconvenienced the way she inconvenienced you.
These are all perfectly reasonable things to feel – and I think that’s made clear with the number of HPs commenting above about how awful the situation is – many people empathise with you here. I don’t think these are feelings that you ought to act on, though. Your AP might be a confused kid, or just desperate to stay in the US or a Machiavellian manipulator out for what she can get. I don’t think that lashing out at her will help you in any of those cases, and in the first two, it would be pretty cruel as well.
Echoing everyone else, not worth the time or stress or money to sue. For me, I’d pursue the agency to offer up options. Start with the LCC, hopefully she’ll become your advocate with the head office. Make a very clear request as to what you want (eg access to rematch pool, refund, etc) and pursue it with head office. Yes, based on the contract you may only be entitled to a $600 credit, but polite persistence can sometimes work wonders
You sound like my former host family. 10 years ago when I decided to leave the program at 5 months and informed my host mom, her answer was: I didn’t even know you were allowed to do that! Maybe she was innocent and didn’t mean harm, but I took it as an offense and my first thought was: does she think I’m a slave here? It always amazes me that host families feel anger and hurt when an Au pair decided to call quit. Any employment is at will, meaning that yes, even an Au pair has the right to quit at any given time for whatever reason, even if the reason has nothing to do with the host family.
Yes, it is at will, but if someone is loosing money because of your decision, you should be paying for it, not your host family. The way I look at it, you stole the money your HF paid for you to come to the US. Do you really think that you can just come for a free ride and there are no ties??? Karma is a beach
It is a shame when the term “karma” is used to describe vengeance.
Au pairs provide a service. Au pairs work above average hours per week, in often less than ideal working condition – it is far from a “free ride”. In this case the au pair has done it for three quarters of the time she was supposed to be there for. The fact that you paid thousands to a 3rd party to arrange it does not mean that the au pair has to stay at all costs. What you’re saying would be fair if these adolescents agreed to pay compensation in the event of them wanting to go home – then many au pairs would never sign up for the program and risk being figuratively held hostage in the US if they are unhappy. That is not the case though. You cant arrange for a young adult to come to your home as an au pair and then later say “by the way if you leave you will have to pay me the annual salary of your whole family”.
I don’t disagree with any of this – of course the AP isn’t a slave and of course the HF loses money (most employers lose money when someone quits).
But I don’t really think it’s entirely about the money – that is an inconvenience, for sure, and needing to arrange child care at the last minute when you thought you were set is deeply unsettling.
But I think what makes it difficult is that the AP / HF relationship is more complicated than a traditional employer / employee relationship and involves a profound level of trust. The HF trusts the AP with the most precious people in the HF’s lives – their children. It takes sometimes a great leap of faith to invite someone into your home, often someone you’ve never met in person, and put them in charge of your children during the day so you can earn a living. As HFs, we have to really really trust the AP at a deep level to do that.
So when the AP breaches that trust, it stings much much more than if an employee at the office decides to quit after a few months. And it may make the HF panic and wonder in what other ways was the trust misplaced – fundamentally, it may make the HF ask whether their child was safe and OK with the AP. If it were “just” a regular employer / employee relationship, none of those emotional would come into play (or shouldn’t anyway!).
Thank you, Anonymous in CA, for articulating what I’d been feeling on this one. And I think that the “hurt” is so much worse while you’re in the thick of the fallout and trying to figure out what to do that people lash out – and the discussion of suing may be a manifestation of that hurt.
I’ve been through two rematches, one of which was three and a half days after the au pair arrived, stating that she didn’t like little kids (our twins were two). I was too wrapped up in the logistics of keeping the kids away from the au pair that I no longer trusted to watch them to post, but I can imagine some of these thoughts going through my head that week (not acted upon, of course). With time, I no longer have those feelings. But we need to remember that when people first learn that their trust was broken, they may say things they won’t later mean.
I have a couple of questions. First, I am wondering what this aupair told the agency . I will bet she didn’t tell them that she wanted to improve her chances of finding a husband . Second, I wonder if aupairs and host families sign the same contract. My guess is that since host families pay the fees , the contract is not the same. It would be awful for you to go to court and lose because the aupair convinces the judge that she is a poor , innocent victim. I think that you can probably negotiate with your agency – maybe someone here has a good experience with that route. Good luck
Mah. I feel that’s the HF projecting because they are frustrated.
AP doesn’t want to stay with them so of course it’s to get married, as her sister did. (It seems to be AP’s first year so it would be much smarter to extend and match with another family for a 12-months option to find another partner to marry her than to rematch with three months left and assume to find somebody to marry her within 12 weeks – not impossible, I assume but why risk not finding anybody instead of extending and allowing a much longer time? Or risking not finding a new HF if going into rematch in month #9 and having to go home without finding somebody to marry her.)
OP need to take her frustration to the agency.
They are the ones who came up with the 6-months rule but allow the AP to rematch 9 months in (AP must have given them a different reason than “I don’t want to live this close to my ex boyfriend any longer” – I doubt any agency would consider that a valid concern, unless he is stalking her or threatening her and she needs to get away from him for safety reasons). If they let the AP rematch, they should allow the HF to rematch aswell or at least reimburse them for the $1600. OP will – most likely – get much further if she takes this up with the agency (who are breaking or at least bending their own rules) than their AP who most likely won’t have the money anyways (or might just disappear back to her home country).
OP is frustrated and annoyed and mad and that’s okay. It’s their right. They are allowed to be pissed that they will be without child care and all their careful planning has just been ruined. But suing the AP? That won’t give them closure or a sense of fulfillment. I assume they are considering to sue “on principle” not because being out $1600 will put them under a huge long-term financial strain… it’s really not worth the stress and the hassle and the emotional involvement. Suing the AP, even if they win and even if with luck AP or her family are able to pay them back, will not make them happy.
Let AP leave (not worth to have an AP that doesn’t want to be there), make agency reimburse the $1600 or provide short-term rematch AP or pay for camp or whatever. And learn to never again sign a contract that won’t allow you to rematch at any point during the year (though if this was supposed to be OP’s last AP that won’t be a problem anyways).
It’s strange how some host families talk about how au pairs are getting a “free ride”. As far as I know (unless there’s an agency out there that only charges host families), au pairs pay a lot of money to be able to be part of the program and some have to take out loans to be able to afford all the costs involved. I’d hate to end up with a host family that made it seem like they’re doing me some kind of favour (and I’ve come across a few families that felt this way) and that I should be grateful for this “free ride” regardless of whether or not I’m happy in that country or specifically with the family. People stand to lose something if someone (either the au pair or host family) doesn’t honour the commitment they made, it’s a risk we take by being in this program.
I think there’s often a lack of understanding of costs on both sides, and I wish agencies would take more initiative laying all of it out to everyone involved — spelling out to families how much au pairs spend and how much effort they put in to get here, and to au pairs how much the family pays in fees and how much the housing, food, and transportation they provide cost in their area. I think it would lead to more mutual appreciation and less sense of entitlement on both sides. Problem is, the agency’s incentive is to obscure how much they’re collecting, to minimize pushback over high fees…
completely agree. Host families pay a lot to the agency and that’s not even factoring in the au pair’s meals, electricity/Internet usage and all the other costs that come with having an extra “family” member living under your roof. And since some of our costs as au pairs are in US dollars, if your country has a weaker currency….well, good luck to you. It’s sad reading about au pairs who don’t hold their end of the bargain and are treating this as a year long vacation; and it’s sad hearing about host families who think that au pairs are just a bunch of 18 year olds with no qualifications and shouldn’t complain about anything because they’re getting a “free ride”. Maybe if more host families and au pairs had a conversation about these things host families would stop assuming that every single au pair has someone else paying for this program (not all au pairs are getting financial support from family members) and au pairs would stop assuming that every family can afford to get them that fancy au pair car (or that they’re entitled to one).
If you were an au pair in Europe and came through an ‘agency’ like aupairworld.com, chances are that you pay less than 100 euro’s to become an au pair and have your flight ticket and all agency costs paid for you by your host family. Our au pair only paid her own visa and her doctor’s appointment for her medical checkup.
In our country you don’t get paid as much as in the US, but you certainly don’t have to take out loans.
My perspective on things is strictly from my experiences as a South African,
and my point is that most au pairs aren’t getting a free ride (especially those who are paying an agency to au pair in the States). Host families pay A LOT of money, and as a South African au pair the list of all the things I have to pay for has been piling up (and I’m a recent university graduate who is paying for everything herself). Fortunately I haven’t had to take out any loans, but I know a few au pairs who have had to borrow money from friends, loan sharks etc to cover the costs. It just depends on where you’re from (and where you want to go), and that’s why I think it would help for both parties to have these types of conversations; you learn a lot from hearing about how another person has had to navigate their way through life.
The “free ride” concept seems inapt even aside from the au pair’s fees. Child care is hard work, and 45 hours/week is an intense schedule. There’s a difference between getting something as part of an employment agreement, and getting it for free. It’s a problem when either families or au pairs miss this point — au pairs who show up unprepared to do more than “play a bit” with the kids, families who take the au pair’s contribution entirely for granted and layer on unreasonable expectations while imagining themselves as generous benefactors… You can debate whether au pairs are well compensated or poorly compensated for the work they do (and the answer may vary quite a bit with the au pair’s qualifications, specific job expectations, perks provided, etc.), but the concept of “free” anything really shouldn’t factor in.
Exactly, there’s no such thing as a free lunch so to speak. It shouldn’t matter how much au pairs have had to pay agencies, what matters is that everyone involved knows what they’re getting themselves into and does what they’re supposed to do based on what was agreed upon. It’s a give and take relationships where people involved benefit one way or another.
My APs have all said the agencies tell them the AP pays for her own flights, training, agency support, etc., through the fees she pays to the agencies. Some APs pay almost as much to the agencies as HFs. I don’t think the agencies want to highlight this for HFs as they also tell the HFs that our agency fees cover the above-mentioned costs.
On a related note, someone at my agency said they price different AP countries differently based on culture. She said they decided to charge more so APs wouldn’t assume it was a low-quality option. (In countries newer to consumerism, higher prices are more attractive because people strongly believe that “you get what you pay for” and a lower cost must mean lower quality.)
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