Friday, September 28, 2018

Are Au Pairs Really Employees?

Host families in Massachusetts are showing support for an au pair company’s argument to the First Circuit to refrain from classifying and treating au pairs as employees, and thus requiring them to follow state labor laws. Rather, the parties involved wish for au pairs working within the United States to be identified as individuals participating in a cultural exchange program, enhancing the program’s aspects that are considered its hallmarks.

Specifically, Cultural Care Inc., the company bringing the lawsuit against the Massachusetts attorney general’s office, argued that classifying au pairs as employees would fundamentally alter the program in two major ways. First, it would dramatically change the relationship between the families and the au pairs. In particular, participating families point out that the relationship between a host family and an au pair is vastly different than that of a traditional nanny. Au pairs become part of the family. They generally are included in travel, meals, and other family activities. Additionally, both the au pairs and the children gain a cultural experience out of the program. The children are able to learn other languages from the au pairs, and the au pairs are able to immerse themselves in American culture. In contrast, by requiring state labor laws to govern the relationship would compel host families to consider whether every interaction with the au pair is “on the clock,” destroying the cultural exchange spirit of the program.

Second, enforcing state labor laws to the au pair relationship means that families would need to pay the state minimum wage. While this would result in a salary surge for au pairs, it could substantially decrease host family participation. By paying the state minimum wage, Massachusetts au pairs would earn about $440 per week, based on a 40-hour workweek. In contrast, under the federal program, these same au pairs currently receive a stipend of about $200 per week, in addition to free room and board. While this pay increase would likely encourage individuals to become au pairs, it is also likely that it would diminish participation of families, possibly threatening the entire program’s viability in many states throughout the country.

Families that participate in an au pair program are not the only ones who should be interested in how the court ultimately rules on this case. It also signals another way in which government agencies are re-examining relationships which have traditionally not been considered to be employer/employee.