For too long, young foreigners who provide childcare to American families have been vulnerable to exploitation, lacking the same labor protections of other domestic workers. That is, until a federal appeals court ruled in Massachusetts earlier this month that au pairs, who come to the US under cultural exchange J-1 visas, are protected by the same workplace laws as other domestic employees.
The ruling reaffirms an uncomfortable truth: What started as a bona fide cultural exchange program has been exploited due to actions by private agencies that place au pairs. A correction of the program to better reflect its original purpose has been long overdue.
Au pairs generally work up to 45 hours per week, with no more than 10 per day, to provide in-home childcare services to host families. Au pairs get paid at least $195.75 a week, or approximately $4.35 per hour, plus food, lodging, and some living expenses. The US State Department’s Bureau of Educational and Cultural Affairs runs the au pair program, and designates “sponsor agencies” to screen, select, and monitor host families and au pairs. There are currently 15 au pair agencies nationwide, and they charge a fee to both host families and au pairs. Last year, there were 20,000 au pairs placed all over the country, according to federal data, 1,500 of them in Massachusetts.
Cultural Care Au Pair, a sponsor agency that places most of the au pairs in Massachusetts, sued the state Attorney General Maura Healey because it believed au pairs should be exempted from the Domestic Workers Bill of Rights that was signed into law in 2014. The law established explicit labor protections for live-in and live-out domestic workers, requiring employers to pay at least the state’s minimum wage and overtime. It also limited the deductions an employer may take from a domestic worker’s salary for providing room and board. The new law meant that au pairs’ weekly stipend would increase to as much as $528.65.
Cultural Care argued that the domestic worker law didn’t apply to au pairs and that it should be preempted by federal law governing the J-1 cultural exchange program. The case eventually landed in the federal Appeals Court in Boston, where a three-judge panel unanimously disagreed with the Cambridge-based company in an exhaustive 81-page ruling. “It is hardly evident that a federal foreign affairs interest in creating a ‘friendly’ and ‘cooperative’ spirit with other nations is advanced by a program of cultural exchange that, by design, would authorize foreign nationals to be paid less than Americans performing similar work,” Judge David J. Barron wrote.
The ruling was an almost inevitable outcome, since questions about the au pair program’s ill-defined intent have plagued it almost from its inception in 1986. It was authorized under a law that established a series of educational and cultural exchanges, but in 1990 a government watchdog agency found that “current au pair programs are essentially child care work programs.” Since then, fair-labor advocates and researchers have consistently and credibly argued that the program has become a cheap nanny agency with too many loopholes and very little government oversight. Despite the fact that some families and au pairs report positive relationships, many au pairs are left vulnerable to exploitation by unscrupulous participants in the program. A national report last year found that “the profit motives driving the J-1 au pair program prevent au pairs from accessing support when confronted with abuses.” That refers to the fees sponsor agencies are allowed to charge — in the $8,000-$10,000 range for host families and anywhere between $500 and $2,500 for au pairs.
To restructure the au pair program, some observers have suggested the program might be better suited to be managed by the US Department of Labor. Regardless of where the program resides, stricter oversight of the sponsor agencies is needed, and au pairs must be subject to existing state labor protections. This might allow au pairs still to be paid a fixed rate in some states but work fewer hours. Reforms should ensure the program looks like a true cultural program and could give financial credit to families for meeting clear cultural requirements, as well as help them with the transition.
It’s high time for the State Department to overhaul the au pair program to adhere to labor laws, or end it. The program’s laudable goal of cultural exchange can be achieved only if it also embraces basic fairness.