Families, Agencies Upended By Au Pair Ruling

Lawmakers have been inundated with questions about the ramifications of a recent federal court ruling involving pay for au pairs, according to a Lexington Democrat who filed legislation aimed at providing a grace period to families that may have been blindsided by the decision.

The U.S. Court of Appeals for the First Circuit last month affirmed a lower court's dismissal of a suit against Attorney General Maura Healey, filed by the Cambridge-based agency Cultural Care Au Pair. The lawsuit argued that federal law relating to au pairs preempts the state's wage and hour laws, but the court disagreed and found that the Massachusetts wage, overtime and Domestic Workers Bill of Rights laws apply to au pairs.

The au pair program, administered by the State Department, allows young adults from other countries to come to the United States under a special type of visa to continue their studies while living with a host family and providing in-home child care.

There were 1,530 new au pair exchange visitors in Massachusetts in 2018, according to a State Department fact sheet, making the Bay State the fifth most popular destination behind California, New York, New Jersey and Virginia.

The Matahari Women Workers' Center, a Boston-based organization that advocated for passage of the state's 2014 Domestic Workers Bill of Rights, said au pairs work up to 45 hours a week and often receive a weekly stipend of $195.75.

Monique Tú Nguyen, the center's executive director, said in a statement that the court's decision means au pairs "will be covered by the state's minimum wage and overtime law without exception." The Massachusetts minimum wage rose to $12.75 an hour on Jan. 1, and the federal minimum wage is $7.25 an hour.

"This is a huge win for au pairs, who provide crucial live-in child care to families across the state," Nguyen said in a statement. "They do the critical caregiving work that makes all other work possible."

Rocio Avila, state policy director at the National Domestic Workers Alliance, said au pairs "deserve basic labor protections that allow them to work safely and with dignity."

A notice posted on the attorney general's website said that Healey's office "understands that host families and au pairs may be learning about these legal obligations for the first time" and is focused on ensuring "au pair agencies bring their programs promptly into compliance with Massachusetts law."

"We also believe that the agencies must implement a solution for the increased costs and regulatory obligations facing host families with au pairs," the notice said. "In order to provide time for that to happen, the Attorney General's Office does not intend to enforce the [Domestic Workers Bill of Rights] or other wage and hour laws against host families at this time, although our office does not have control over private litigation."

Rep. Michelle Ciccolo filed a bill proposing to temporarily exempt au pairs from provisions of the Domestic Workers Bill of Rights — sections dealing with periods of rest; what counts as working time that must be paid; wage deductions for food, beverages and lodging; written evaluations; requirements for employers to provide lodging or severance pay in cases of termination without cause; and payroll record-keeping requirements for employers — until June 30, 2020. The provisions would then apply to au pairs on July 1.

"We are, all of us in the building, are getting just tons and tons of emails about families who were caught off guard," Ciccolo told the News Service.

Ciccolo said Massachusetts families who were not notified of the lawsuit by their au pair agencies are "feeling very much in the lurch." She said those families are now trying to figure out how to process payroll, how to build higher pay requirements into their budgets and how to otherwise maintain a childcare arrangement that works for their families' circumstances.

"The only thing my bill is intending to do is give a six-month grace period," Ciccolo said. "Many of the contracts are one-year contracts, some of them are 18 months, and a lot of them turn over in the summertime, so I just kind of figured we would give families a little more time, and the agencies themselves, to figure out how to comply properly."

A separate bill, filed by Reps. Paul McMurtry and Paul Donato, would allow employers to deduct lodging, food and beverage costs from an au pair's pay in an amount up to 40% of the weekly wages owed. The bill's effective date is Dec. 2, 2019, the day the First Circuit Court released its opinion.

McMurtry's bill, which has 10 cosponsors, was filed on Dec. 18 and has not been referred to a committee for review. Ciccolo's bill, filed the same day with 15 cosponsors, was sent to the House Rules Committee on Dec. 26.

Ciccolo said she's not sure if the Legislature should pursue other policies related to au pairs during the six-month delay her bill proposes. She said McMurtry's bill is "worth exploring," especially given the high cost of living in Massachusetts.

"I don't know what's right," she said. "I think paying minimum wage is important, and I don't think that a different wage rate should be applied."