OP-ED: Details of Au Pair Ruling, Constituent Meeting

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State Sen. Will Brownsberger

The following piece was provided by State Sen. Will Brownsberger, who represents Watertown, Belmont and parts of Boston:

For my constituents with concern or interest in the new Au Pair Ruling, I’m holding a discussion meeting: Saturday, December 21, 2019 at 12:30PM – 2 p.m., Watertown Savings Bank Meeting Room, Watertown Free Public Library, 123 Main St, Watertown, MA 02472 (See below for more details on the ruling)

A federal appellate court ruling has created a difficult situation for some families who rely on “au pair” arrangements for their child care. The ruling upheld the application of the Massachusetts Domestic Workers Bill of Rights to au pair arrangements.

In an “au pair” arrangement, a young person comes from another country to live with a U.S. family. In return for room and board, they provide child care. In many cases, they are treated very well, often as a family members. They have the opportunity to perfect their English and may also be a full time student. They may have light responsibilities, perhaps only after-school pick up and afternoon childcare, but they may make a critical difference for working parents. All benefit from a cultural exchange.

For better or for worse, what historically has been a personal arrangement of trust has grown into a big business. Agencies recruit women from around the world and place them with families to provide child care. They charge the families hefty fees. In some cases, the “au pair” has not been treated as a family member, but as a domestic servant with full-time responsibilities often going beyond child care to include house work. Because the women are on temporary visas, they have limited ability to push back on unreasonable demands and cases of real abuse have occurred.

The legislature followed California and New York and passed a Massachusetts Domestic Workers Bill of Rights in 2014 to respond to a series of troubling reports. The Massachusetts “DWBOR” requires families to treat their au pairs as employees:

  • Keep records of hours worked
  • Pay Massachusetts minimum wage (now $12/hour) and overtime
  • Make only limited permitted deductions for room and board
  • Provide rest time and sick leave
  • Provide reasonable access to phone and internet

Of critical importance, the au pair must be provided notice of these rights and an employer family can be prosecuted if they retaliate against an au pair’s assertion of these rights.

TheDomestic Workers Bill of Rightswas enacted over 5 years ago, but some agencies who place au pairs have chosen to litigate the new rules, instead of adapting to them. They have argued that weaker federal rules preempt the state rules. The agencies have continued to place au pairs without regard to the rules and, with the litigation pending, the Massachusetts Attorney General has not brought enforcement actions against families.

The recent ruling settles the issue that the Massachusetts DWBOR does lawfully apply to au pair arrangments. Weaker federal rules do not necessarily preempt stronger state rules. For example, the federal minimum wage isonly $7.25, but Massachusetts workers benefit from the higherMassachusetts rate of $12.00. The court confirmed that Massachusetts has the power to set standards for domestic workers, including au pairs.

For families who currently have arrangements that do not comply with Massachusetts rules, the change increases costs and paperwork and, in some cases, creates a genuine hardship. I have heard from many families who depend on au pair child care who are distraught and are seeking a legislative exemption from the new rules. While I am deeply troubled that some mutually beneficial arrangements are going to be disrupted by the new rules, I do not support exempting au pair arrangements.

The Massachusetts Domestic Workers bill of rights responded to very real abuses. At the time the bill was under discussion and debate, we considered exempting au pair arrangements but concluded that by so doing we would be creating a significant loop hole that would defeat the purposes of the bill. The bill waspassed by a unanimous final roll call in the Senate and by a final roll call of 126 to 22 in the House.

To the extent that some families have been surprised by the ruling, the fault lies with agencies who may have placed au pairs under the old rules and failed to inform families that the new rules were likely to come into force when litigation ended. The legislation was enacted on June 26, 2014 and a full transition period was allowed. We made it effective April 1, 2015.

Recognizing that families are not at fault, the Attorney General is still deferring enforcement as agencies and families sort out the consequences, but all who are affected should plan to move as quickly as possible into compliance. Agencies should be offering to unwind agreements or absorb the costs. I would like to know about agencies who are not taking appropriate responsibility for the transition.

I am also eager to continue to hear from affected families in my district — while I do not foresee any wholesale changes and our degrees of freedom on the details are limited, I remain willing to look for fair and feasible adjustments.

Resources

Note re Housing and Living Allowances

The existing limits on pay deductions for housing and food strike many families as unreasonable. The maximum deduction for housing is $35/week and the maximum deduction for food is $6.00/day. For more detail seethe minimum wage regulations.

I agree that in the context of the homes where au pairs are most likely to be retained, these numbers look low. Yet, I do not think that adjusting these numbers is a promising idea. First, from a practical legislative standpoint, raising these numbers basically means cutting the minimum wage; we cannot carve out au pairs for different allowances. Cutting the minimum wage is not what we are trying to do right now. Second, the truth is that from a marginal cost standpoint, the numbers are not so far off. It does not actually cost a family anything to let an au pair use empty space in the house. Similarly, one more plate at a family table does not necessarily generate the same cost as it would to prepare a single meal from scratch.

One thought on “OP-ED: Details of Au Pair Ruling, Constituent Meeting

  1. I agree that people in the program, on both sides of the host/Au pair relationship, entered into it with good intentions and the personal belief that it is a fair, legal, and beneficial program. Many have benefited from this program. Many families are in a very hard place right now. I feel for all involved. Particularly for host families whom I personally know and respect. But your framing of the issue is problematic and you misrepresent the work load of most Au Pairs.

    Labor should not simply be a matter of “trust” between two parties without legal protections (the power dynamics are too unequal – even without the complicating factor of contingent visa status); this is why we had a labor movement, it is why we passed the Fair Labor Standards Act of 1938, and it is why MA passed the Domestic Workers Act to protect those workers excluded from said FLSA – an exclusion that was motivated by race. The continued exclusion of DW from the FSLA is part of Jim Crow’s legacy – a legacy that fosters and compounds economic inequity in this country.

    Agencies turning Au Pairs into big business is not the core issue – the core issue is that the underlying model of work does not adhere to fair labor practices.

    Regarding the work load of Au Pairs, federal regulations allow families to have Au Pairs work up to 10 hrs a day (up to 45 hours a week) with only a guaranteed 1.5 days off a week. With one full weekend off a month. https://blogs.aupairinamerica.com/2015/11/11/faq-au-pair-scheduling-and-hours/

    These are the prospective work loads that most agencies market to host families. A simple web search will show you as much. I would very much like to see the data on the average hours worked by Au Pairs in the Boston Metro Area. (Also fwiw 35-45 hours of child care is full time work with or without added household duties).

    Furthermore, for families where the duties are as light as you suggest, a new contract adhering to the DWA would be financially feasible as the hourly wages would not greatly exceed the previous $200 a week stipend (20 hrs x $12 = $240), and the new overtime pay requirements would not apply. But it seems many, if not most, host families are stating that their costs will increase significantly.

    This ruling was correct and just. Fair labor practices and protections being available to all who work on American soil is nothing to be “deeply unsettled by”.

    Domestic Work is Work. Domestic Work makes all other Work possible.

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