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State Department’s Federal Au Pair Oversight Plan Draws Critics

July 16, 2021, 9:41 AM

The Biden administration plans to advance its predecessor’s proposal to keep state and local worker protections from applying to foreign au pairs, angering labor advocates who doubt the Department of State—as overseer of the visa program—has the means to shield the young and mostly female workforce from abuse.

“There is a huge problem with the federal State Department’s inability to actually administer and provide oversight of this program,” said Rocio Avila, senior employment law counsel and state policy director at the National Domestic Workers Alliance.

The live-in childcare workers are recruited through sponsor companies and can stay in the U.S. with a J-1 exchange visitor visa. Families pay an agency fee, and those they employ can work a maximum of 45 hours per week and get paid weekly at a rate of $4.35 per hour, as the cost of au pair room and board is deducted from their federal minimum wage. They’re tied to their host families and sponsoring companies. Many have reportedly faced threats of deportation, as well as financial, physical, and sexual abuse.

Former President Donald Trump’s State Department planned to write a rule stating that the program’s guidelines preempt state and local laws, such as domestic worker protections and minimum wages, spurring a flurry of lobbying by worker advocacy groups and au pair sponsor companies alike last year.

The Biden administration has placed labor rights and childcare support at the center of its “Build Back Better” agenda for post-pandemic America. But the State Department still plans to write a rule that would preempt state and local statutes, according to an April 30 letter to several congressional committees from Naz Durakoğlu, acting assistant secretary in the department’s Bureau of Legislative Affairs.

The proposed rule hasn’t made it to the White House’s regulatory review office—a move that would indicate it could be days or weeks from public release—according to the office’s website. But the administration’s regulatory agenda released last month references such a measure—albeit without the descriptive language contained in Trump administration’s last agenda.

Give and Take

The letter carries forward some of that description from the Trump administration’s agenda, and retains its overarching objective.

In it, Durakoğlu said State recognizes the cost of living has increased in various places, resulting in “inadequate compensation for some au pairs who are hosted in particularly expensive areas,” and that it was proposing to raise compensation based on the highest federal, state, or local minimum wage in the host family’s locality.

But to preserve the “immersion into American family life,” she added, the program must retain elements such as the deduction from wages of room and board and a prohibition on overtime, and “the proposed rulemaking would also expressly preempt state and local laws that, in the Department’s view, are inconsistent with or pose an obstacle to the achievement of the objectives of the program.”

Critics say this approach would bar workers from benefiting from those state and local laws, and that the administration should drastically reform the program—starting with shifting it to the U.S. Labor Department, which they argue would be a better and more appropriate enforcer of these workers’ rights.

“We find it deeply confusing and concerning that the Biden administration would maintain really dangerous policies of the Trump administration,” said attorney David Seligman, executive director of Towards Justice. He called the planned rule “a really dangerous threat to states and cities that have, over the past several decades, made great, important strides to protect workers” in their jurisdictions.

The White House press office didn’t immediately respond to a request for comment on the State Department’s planned au pair program rulemaking or its critics’ concerns.

A State Department spokesperson who declined to be identified said in an email, “we continue to work on the proposed regulatory changes with the objective of improving the au pair program, consistent with its primary purpose as a foreign policy and public diplomacy program an the imperative of protecting the health, safety, and welfare of program participants.”

Pressed for a response to au pair advocates’ concerns, another spokesperson said via email that the department “monitors sponsor agencies’ programs for compliance with Department of State regulations, and we take very seriously any report submitted to us concerning the health, safety, or welfare of exchange participants.”

Diplomacy or Labor


State’s position has the backing of the Washington-based Alliance for International Exchange, which represents au pair sponsor companies.

“We support the State Department’s view that this is a public diplomacy tool,” said its executive director, Ilir Zherka, who cited an alliance-commissioned survey of host families and au pairs stating just 11% of former au pairs were dissatisfied with the program and 14% were unlikely to recommend it. “I think the Biden administration has people in the State Department and within the White House who understand that the au pair program is a cultural exchange program, and it’s not a domestic worker program,” Zherka said.

Still, the administration’s plans leave au pair advocates and lawyers surprised and dismayed. Even if wages are higher in areas where there are higher minimum wages or costs of living, they may not match state and local minimums because of the 40% deduction of room and board costs from au pairs’ pay.

The letter came to light last month as an exhibit filed by an attorney for Cultural Care Inc., a leading au pair sponsor company, named as the defendant in a Massachusetts class action.

Filed earlier this year by Seligman, the suit accuses that company of violating the Fair Labor Standards Act and state wage laws.

The complaint references a ruling against Cultural Care in its separate fight to prevent a Massachusetts state domestic worker protection law from applying to the program. In it, a U.S. appeals court upheld a 2019 trial court ruling that au pair-employing families in Massachusetts must comply with the state’s Domestic Workers’ Bill of Rights and pay $12.75 per hour, rather than the $195.75 federal weekly stipend. The U.S. Supreme Court last June declined to take up the dispute, letting the appellate ruling stand.

Quinn Emanuel Urquhart & Sullivan LLP attorney Harvey Wolkoff, counsel for Cambridge, Mass.-based Cultural Care, didn’t immediately comment on the allegations. In a memo supporting a motion to dismiss, the defense attorneys argued that Cultural Care wasn’t the employer of the au pair in whose name the suit was filed, and that any alleged abuses are the responsibility of the host families for whom she worked.

Taking Advantage

The sponsor companies’ business models are “contingent on their idea that the cultural exchange program, as a visitor visa where you get to spend time in the United States, is the primary function and the childcare aspect of it, the work, is secondary,” said Avila, the National Domestic Workers Alliance attorney.

Worker advocates cite the sponsor companies’ lobbying clout as the reason for a lack of increased au pair protections despite years of litigation and media coverage. The American Institute for Foreign Study, which runs the Stamford, Conn.-based sponsor Au Pair in America, and Cultural Care have for years reported lobbying on the program, continuing to do so into the first quarter of this year, the most recent period for which disclosures are available.

The program’s educational component is “minimal” and often not even respected, and employer families should pay at least the prevailing wage for childcare workers in their areas, said Kristin Greer Love, public policy counsel at the Centro de los Derechos del Migrante, Inc.

“If I went out and got a job as a childcare worker, I would be protected under federal law and under my state laws that govern childcare workers and domestic workers,” she said. “This program essentially enables host families to look abroad, to engage in abuse through a program that has been set up by the State Department, and avoid paying the wages that they would otherwise have to pay for a domestic worker.”

Au pair hours can be difficult to confine to the one-day 10-hour maximum or the 45-hour weekly cap, especially if they’re on call to take care of babies crying all night, said Daniel Costa, director of immigration law and policy research at the Economic Policy Institute.

“When you’re having people come and work 40 to 80 hours a week, I think the Labor Department should be involved,” he said.

To contact the reporter on this story: Lydia O'Neal in Washington at loneal@bloombergtax.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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