Many families in Massachusetts use au pairs to care for their children. The United States Department of State (“DOS”) administers this “Au Pair Program,” whereby foreign nationals obtain a special type of visa and are placed with host families in the United States, so that the foreign nationals may provide in-home childcare services to the host families while they also pursue their post-secondary school studies.
On December 2, 2019, the First Circuit Court of Appeals ruled that au pairs, like any other domestic worker, are protected by the Massachusetts Wage and Hour Laws. In Capron v. Office of the AG of Mass., 944 F.3d 9, 12-13 (1st Cir. 2019), the Court was asked by Cultural Care, a DOS-approved private placement agency based in Massachusetts, to issue a ruling that the “Au Pair Program” preempts Massachusetts from requiring host families to comply with its wage and hour laws. The Court, however, declined to do so ruling that while the relevant DOS regulations set a federal regulatory floor on au pair participant wage and hour protections, they do not set a ceiling that limits the wage and hour protections that states may provide to au pair participants. The Court held that from the text of the DOS regulations applicable to the Au Pair Program, “all one can tell….[is] the Au Pair Program operates parallel to, rather than in place of, state employment laws that concern wages and hours and that protect domestic workers generally, at least with respect to the obligations that such state law wage and hour measures impose on host families to do more than what the FLSA itself requires.”
If you are a participant in the Au Pair Program and you believe that you are not being paid in compliance with the Massachusetts Wage and Hour Laws, please contact us for legal advice.