After suffering a bruising defeat in Colorado federal court, Cultural Care initiates a counteroffensive by filing a suit in Massachusetts District Court to preclude the recently enacted Domestic Workers Bill of Rights from applying to them. See Complaint at 42-44, Cultural Care, Inc. v. Office of the Attorney Gen., No. 16-cv-11777 (D. Mass. Aug. 31, 2016).
The Bill of Rights does not directly name au pairs, but protects employees "paid by an employer to perform work of a domestic nature within a household including ... nanny services" and requires that such employees be paid for “all working time” including “all time during which a domestic worker is required to be on the employer’s premises.” M.G.L. c. 149, § 190(a).
Despite professing to “have a personal connection to the au pair program,” and announcing that au pairs “can trust us,” Cultural Care now claims that au pairs should not be afforded such rights because they participate in a “cultural exchange program” rather than a “work program.” Cultural Care also claims that au pairs are not entitled to the protections of the FLSA and state labor laws because they are not hourly workers. Indeed, au pairs currently receive a weekly stipend of $195.75 and required to work up to 45 hours per week, which amounts to $4.35 per hour, considerably below the $7.25 federal minimum wage.
These precise arguments were summarily rejected by the Colorado District Court in its decision to deny Cultural Care’s motion to dismiss a class action lawsuit, brought against the company and fourteen other au pair “sponsors,” alleging numerous violations of the FLSA and state labor laws. Beltran v. InterExchange, Inc., No. 14-cv-03074 (D. Colo. Nov. 13, 2014).
In its decision, the Colorado Court held that the 1997 amendment to the regulations governing the au pair program requires that “au pair participants [be] . . . compensated at a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the Fair Labor Standards Act.” See Beltran v. InterExchange, Inc., 2016 U.S. Dist. LEXIS 43771, at *12 (D. Colo. Mar. 31, 2016), quoting 22 CFR § 62.31(j)(1). The Court emphasized that this amendment had the specific purpose of preventing any confusion regarding an au pairs’ coverage under the FLSA, as its explanatory language states that the amendment was necessary because “[t]he United States Department of Labor has determined that au pair participants are covered under [the FLSA] and therefore must receive federal minimum wage.” Id., quoting 62 Fed. Reg. 34632-33. As such, the Court unequivocally concluded that the FSLA applies to the au pair plaintiffs’ wage claims. Id. at *13.
In light of their role in facilitating au pairs as “exchange visitors” from other cultures, it is questionable that Cultural Care maintains this stance, rather than embracing an opportunity to provide greater protections for those in their charge. Regardless, it will be interesting to see whether the Court in Massachusetts will follow in the footsteps of Colorado federal court and extend FLSA and state labor law rights to au pairs.
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