Au pairs entitled to full protection of Massachusetts laws, 1st Circuit rules.

Byline: Kris Olson

The federal program that brings au pairs to the United States on special visas provides a ceiling rather than a floor for participants' compensation and workplace protections, the 1st U.S. Circuit Court of Appeals affirmed recently in a decision that reverberated from Massachusetts to the Rocky Mountains.

In a statement, the Attorney General's Office said the 1st Circuit's ruling in Capron, et al. v. Massachusetts Attorney General "makes clear that au pairs, like other domestic workers, are protected by our laws."

A spokesperson for plaintiff Cultural Care of Cambridge says in an emailed statement that the agency continues to "share the position taken by the U.S. government in this case and throughout the au pair program's 30-year history that it is a unique and distinctly federal cultural exchange program overseen and exclusively regulated by the U.S. Department of State."

The spokesperson indicates that the agency is continuing to evaluate the decision and considering its legal options, "due to the importance of ensuring that au pairs and host families in Massachusetts can continue to experience the tremendous benefits of this program and build the international friendships that are so needed in today's world."

The plaintiffs, who also include two Massachusetts residents with whom Cultural Care had placed au pairs, are represented by Choate, Hall & Stewart lawyers Joan A. Lukey and Justin J. Wolosz.

According to the National Domestic Workers Alliance, au pairs generally work up to 45 hours a week, usually receiving weekly stipends of $195.75, or what amounts to $4.35 an hour.

By contrast, as of Jan. 1, 2019, the Massachusetts Fair Wage Law had set the minimum wage in the state at $12 an hour, with time-and-a-half for overtime.

Meanwhile, the Domestic Workers Bill of Rights Act and its implementing regulations not only made clear that domestic workers are entitled to overtime but restricted the deductions an employer may take from a domestic worker's wages to offset the costs of the worker's food and lodging.

The plaintiffs argued that the federal government structured the au pair program to impliedly preempt Massachusetts from requiring host families, as the au pairs' employers, to comply with its wage and hour laws.

But in a meticulous 81-page opinion, the 1st Circuit rejected both the plaintiffs' "field preemption" and "conflict preemption" arguments.

"It is hardly evident that a federal foreign affairs interest in...