Au pairs and Massachusetts Labor Law: Cultural Exchange or Exploitation?

Cambridge, MAA Massachusetts Employment lawsuit appears like a slam dunk when figures such as $4.35 per hour for a 45-hour week, or $195.75 as a weekly stipend are bandied about. However, there’s more to this story than meets the eye. Plaintiffs cite affronts to Massachusetts Labor law and various statutes observed by other jurisdictions where the putative class-action lawsuit lives. Defendants, on the other hand, claim they are playing by the rules and that their hands are tied.

What are we talking about here?

The J-1 visa au pair program that sees young people from far-flung countries traveling to the US to live with a host family - in so doing helping out with child care and attending school.

Culture Care Inc. of Cambridge, Massachusetts, is an au pair sponsoring organization and one of the defendants. In a motion to dismiss filed recently, Culture Care says that any action citing Massachusetts Employment Law - and any wage statute, for that matter - is without merit because the program falls within the jurisdiction of the US State Department - including the weekly $195.75 pay packet that is mandated, according to Culture Care, by the feds.

Plaintiffs in the class-action lawsuit, originally filed last November and amended in March, cite the au pair program as having devolved to an exploitation of domestic workers from abroad. Five plaintiffs from Colombia and South Africa brought the suit.

One of the named plaintiffs is Johana Paola Beltran. She claims to have paid $2,500 for the right to participate in the program and wound up with a family in a Denver suburb. Beltran claims she worked eight and sometimes nine hours per day, five days a week, performing tasks such as cooking for the family, as well as house-cleaning chores and caring for the family’s eight chickens.

For working up to 45 hours per week, she was paid $195.75. Beltran and her fellow plaintiffs hold that the au pair program has devolved from an opportunity for young people to gain foreign experience, into a cheap source of migrant labor for US families. The class-action lawsuit, which seeks to represent thousands of au pairs over a period of years, brings antitrust claims as well as allegations of racketeering and fraud.

In an amendment to the complaint in March, the plaintiffs suggested “the history of the au pair program is a history of sponsor abuse. At its outset, the sponsors manipulated the program by fixing au pair wages at prices below federal and state minimum wage.”

But hold on a minute, say the defendants. Plaintiffs are attempting to portray the au pair opportunity as a “work program” when in reality, an au pair is about cultural exchange.

One of the defendants in the lawsuit is InterExchange Inc. of New York City. InterExchange takes exception to any suggestion that defendants are violating state employment laws, given that in the defendant’s view the au pair program does not fall within state employment jurisdiction, but rather falls under the jurisdiction of the US State Department. “As such, InterExchange is not operating within the employment laws of various states, but rather within the program regulations established by DOS,” it said.

Culture Care of Massachusetts maintains that not only is the wage stipend mandated by the State Department, the feds expressly direct the au pair facilitators to ensure host families pay that rate, and not a penny more.

“Thus, Cultural Care’s conduct is protected from antitrust liability under the federal instrumentality/implied immunity doctrine,” it said.

The lawsuit, which was brought in Colorado but includes Massachusetts labor law given that one of the defendants is based in Cambridge, accuses a total of 15 au pair sponsoring organizations of fixing wages, amongst other allegations.

The case is Beltran v. Noonan, Case No. 1:14-cv-03074, in the US District Court for the District of Colorado.