Potential Impact of U.S. State and Local Employee Protection of Foreign Au Pairs by Matthew Finegan

I. The Department of State’s Proposed Rule Amending the Exchange Visitor Program

The U.S. Department of State (“State Department”) has recently proposed to amend existing Exchange Visitor Program (“Program”) regulations governing foreign au pairs.[1] If promulgated, this federal regulation would effectively preempt state and local labor protections, forcing foreign au pairs to rely solely on the Program’s guidelines for worker protections.[2] The State Department announced that these proposed amendments serve to “affirm its longstanding view that … state and local laws that are inconsistent with [federal au pair regulations] … pose an obstacle to the achievement of the objectives of the program.”[3] Indeed, this longstanding view was first proposed by the Trump administration, who first began working on a rule that would subject foreign au pairs to uniform conditions regardless of any state laws.[4] Although the Biden and Trump administration have shared a litany of different foreign policy objectives in the past, it is clear that the Biden administration plans to effectively carry-out the Trump administration’s unfinished plans for the Program by effectively shielding foreign au pairs from state and local labor protections.[5]

II. The Au Pair Process in General

Colloquially, an “au pair” is a foreign visitor who travels to the United States to acquire a better understanding of American life and culture, while living with and caring for young American families and children.[6] Currently, au pairs are able to become “live-in childcare workers” by being recruited by an approved “sponsor company” and obtaining a J-1 exchange visitor visa.[7] A J-1 exchange visa is a “nonimmigrant visa” for “individuals approved to participate in exchange visitor programs in the United States.”[8] Upon issuance of J-1 exchange visitor visa by the U.S. Bureau of Consular Affairs, the au pair is then “matched” with an American family through a sponsored company.[9] After paying an agency fee, the American family has the right to employ au pairs and pay them directly for their services.[10] Au pairs are generally required to work and live with their families for a duration of twelve months, with the possibility to extend their employment for up to two years.[11]

III. Federal and State Minimum Wage Requirements Relating to Au Pairs

Although the Fair Labor Standards Act (“FLSA”) requires minimum wage of $7.25 per hour for working persons on the federal level, regulations implemented by the State Department only require families to pay their au pairs $4.35 per hour.[12] This deviation represents the cost of room and board, which is deducted from their federal minimum wage.[13] On top of deductions, the Program only allows au pairs to work up to 45 hours per week; this effectively caps an au pair’s weekly salary at $195.75 with no opportunity for overtime pay.[14] Moreover, many states also have minimum wage laws, which yield higher minimum wage requirements and more worker protections.[15] For example, in New York City, the minimum wage requirement to be paid by “large” and “small” employers is $15.00 per hour.[16] Therefore, an au pair living with and working for an American family domiciled in New York City could theoretically be paid $15.00 per hour, minus deductions for room and board.[17]

However, the Biden administration’s proposed amendment to the Program will inevitably foreclose any opportunity or legal argument for such an entitlement, as the regulations promulgated through the State Department would reign supreme. This proposal comes at an especially distressing time because many labor advocates believed there would be a larger shift towards enhancing current labor protections. Certain states, such as Massachusetts, had begun enacting legislation specifically allowing au pairs to earn minimum wage while working and living within their jurisdiction.[18]

IV. Labor Advocates v. Approved Sponsor Companies

The Biden administration’s position has the full support of the Washington-based Alliance for International Exchange (“WAIE”) which represents all 12 au pair sponsor companies.[19] Ilir Zherka, executive director of WAIE, noted that the Program is a “public diplomacy tool”[20] which gives credence to the idea that the au pair program is simply a “cultural exchange program” rather than a “domestic worker program.”[21] Furthermore, Zherka cited a WAIE-commissioned survey which concluded that just eleven percent of former au pairs were unsatisfied with the Program, implying that the State Department’s oversight and regulations of the Program are adequate to protect their individual and employment interests.[22]

Not convinced about the State Department’s ability to fully protect au pairs are labor advocates and lawyers, such as David Seligman.[23] He stated that the rule is “a really dangerous threat to states and cities that have, over the past several decades, made great, important strides to protect workers.”[24] Adversaries to the proposed rule, including Seligman, call into question not only the obvious foreclosure of state and local protections, but the State Department’s apprehension to delegate the responsibilities of implementing the Program to the U.S. Labor Department, which is arguably a more appropriate and knowledgeable entity on workers’ rights.[25] Au pair advocates have also implied that the State Department’s argument that the educational component, being the ‘essential mechanism’ of the Program, is merely pretextual because the educational component is “minimal” and should not be used to justify employer families from paying the prevailing wage in their cities.[26]

V. Practical Considerations and Concerns

Unfortunately, lost in this battle of regulatory authority is the disparate impact this proposed amendment would have on the young and mostly female workforce.[27] Coupled with the practical and administrative concerns regarding the State Department’s ability to provide adequate oversight of the Program, there has been a long, appalling history of rampant exploitation.[28] Many foreign au pairs have alleged being subjected to threats of deportation and, more heinously, been subjected to physical, sexual, and financial abuse.[29] Although lobbying efforts and public policy considerations ultimately prevail in the political spectrum, it is important to keep in mind that these childcare workers, without adequate protections, are fully reliant on the families they live with and are constrained to their visitor visas for work.[30]

Currently, the proposed amendment has yet to reach the White House’s regulatory review office, meaning it is at least months away from implementation.[31] Regardless, if this proposed rule becomes effective, au pairs will have to solely rely on the U.S. government for further worker protections in the future.

[1] U.S. Dep’t of State, Bureau of Consular Affairs, Exchange Visitor Program – Au Pair Federal Regulation Preemption of State and Local Law, Off. of Info. and Regul. Affs. (July 2020), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=1400-AF12.

[2] Id.

[3] Id. (explaining that from U.S. government’s perspective, the Program is primarily founded on the cultural and educational experience, rather than the employment component).

[4] Blake Harper, Biden’s State Department Will Strip Au Pairs of Labor Rights, Fatherly (July 16, 2021, 1:17 PM), https://www.fatherly.com/news/biden-administration-au-pair-labor-rights/.

[5] Andrew Harris et al., State Department’s Federal Au Pair Oversight Plan Draws Critics, Bloomberg Law (July 16, 2021, 5:41 AM), https://news.bloomberglaw.com/daily-labor-report/state-departments-federal-au-pair-oversight-plan-draws-critics.

[6] Au Pair Program 101, Au Pair Int’l (last visited Sep. 7, 2021), https://www.aupairint.com/au-pair-program-101/.

[7] Harris et al., supra note 5.

[8] Overview of Exchange Visitor Visa Program, U.S. Dep’t of State, https://travel.state.gov/content/travel/en/us-visas/study/exchange.html (last visited Oct. 9, 2021).

[9] Id.

[10] Allyson Downey, Here’s The Plan – How Much an Au Pair Costs, http://herestheplanbook.com/au-pair-cost (last visited Oct. 9, 2021).

[11] Frequently Asked Questions, Au Pair Int’l, https://www.aupairint.com/frequently-asked-questions/ (last visited Oct. 9, 2021). Au Pair International is one of the 12 approved agencies that help govern and place au pairs with participating American families. Regarding the blog post, this agency is used as a general example as some agency procedures and protocols may vary.

[12] Overview of Federal Minimum Wage Requirements, U.S. Dep’t of Labor, https://www.dol.gov/agencies/whd/minimum-wage (last visited Oct. 9, 2021); see 22 C.F.R. § 62.31(j)(1) (2008).

[13] Harris et al., supra note 5.

[14] See 22 C.F.R. §62.31(c)(2) (2008).

[15] U.S. Dep’t of Labor, supra note 12.

[16] N.Y. Lab. Law § 652 (Consol. 2017).

[17] See New York Exempt Employees: What you need to know, BLR, https://www.blr.com/Compensation/Compliance/Exempt-Employees-in-New-York (last visited Oct. 9, 2021).

[18] Harper, supra note 4.

[19] Harris et al., supra note 5.

[20] Id. (explaining that the phrase “public diplomacy tool” has underlying significance because 22 U.S.C. §§ 2561(a)(4) & (b)(3) conjunctively authorize the State Department to promulgate rules and regulations for the implementation of United States public diplomacy polices, which includes cultural exchange programs).

[21] Id.

[22] See id.

[23] Id.

[24] Id.

[25] Id.

[26] Harris et al., supra note 5.

[27] Id.

[28] Harper, supra note 4; Harris et al., supra note 5.

[29] Harper, supra note 4.

[30] Id.

[31] Harper, supra note 4; Harris et al., supra note 5.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s