Can Au Pairs Legally Be Paid Less Than $5 An Hour?

Bryce CovertBeaudette Deetlefs, who goes by Bella, thought being an au pair in the United States would be a great opportunity. The agency she applied to told her she’d travel with her host family on vacation, earn enough to put money into savings, and be treated like a member of the family.

But the when she arrived in Salt Lake City from her home country of South Africa, the reality turned out to be completely different. “What the company told us before we came here, and what actually happened when we got to America, was two different things,” she said. She says her host family wasn’t comfortable her living in the house, which made things tense, and wouldn’t take her on vacation. Sometimes she would be left behind with no food, and the pay was meager.

“The way [the agency] presented it is you can save money,” she said. “It’s not possible with a family that wants you to pay for everything … The pay we get is not enough to save and do stuff with.”

Federal regulations say the J-1 Visa Program, which governs au pairs, must comply with American minimum wage laws. A State Department pamphlet says as much. But a lawsuit Deetlefs and other au pairs have filed alleges that the 15 agencies in the U.S. illegally paid less than minimum wage. Agencies require host families to pay a minimum stipend of $195.75 a week, and because au pairs put in 45-hour weeks, the hourly wage comes to just $4.35. The agencies say that these wages comply with the guidelines set by the Department of Labor and the State Department.

“The State Department has regulations that are specific to au pairs, not even just the J-1 program,” said Matthew L. Schwartz, a lawyer from Boies, Schiller & Flexner working on the case. “They say explicitly that the sponsors are in charge of ensuring that au pairs are paid in accordance with the Fair Labor Standards Act [FLSA],” the law that requires all American workers to be paid minimum wage and overtime.

Go Au Pair President Bill Kapler, one of the agencies named in the lawsuit, said his company simply complies with guidelines sent to it by the government when it tells families that the minimum weekly payment is $195.75. “We truly believe it’s what we’ve been told to do,” he said. “If the Department of Labor comes back and says, ‘We’ve changed some rules,’ we’ll follow whatever the rules are.” He pointed out the program “is not meant to be a labor thing at all,” but is run by the State Department to further foreign relations goals. Many other agencies named in the lawsuit declined to comment.

At the heart of the issue may be whether or not the host families can deduct the cost of room and board from what they pay. The complaint filed on behalf of the au pairs claims that families can’t deduct the costs of food and lodging against the minimum wage given that the program requires them to provide those things. But a 2007 letter from the State Department sent to the agencies and shared with ThinkProgress, indicates they may deduct 40 percent of an au pair’s compensation as the room and board credit, thus bringing their weekly stipend for 45 hours a week to $195.75 under the federal $7.25 an hour minimum wage.

Schwartz said that State Department has since withdrawn that notice and instead clarified that au pairs have to be paid in accordance with minimum wage laws. “We believe that the State Department pulled down the June 2007 notice because they realized it was erroneous once Towards Justice filed this suit,” he said. “We’re very confident in our view of the law.”

Either way, the deductions still wouldn’t account for higher state minimum wages, which the lawyers for the au pairs argue agencies would have to comply with. Twenty-nine states and Washington, D.C. have higher wage floors than the federal government does.

The lawsuit also argues that the agencies engaged in anti-trust behavior by conspiring to keep wages so low and in false advertising by making promises to the au pairs that didn’t turn out to be true for many of them. Kapler of Go Au Pair denied that the agencies coordinated on wages or that it made any promises in its advertising beyond “the facts and the rules.”

The complaint brought by Boies, Schiller & Flexner, the nonprofit Towards Justice, and the au pairs argues that the program has been plagued by low wages from the beginning. Started in 1986, sponsors paid just $100 a week for 45 hours of work. This caught the attention of the General Accounting Office in 1990, which issued a report saying that the au pair program was a “full-time child care work” program and the au pairs had to be treated as full-time employees. Later clarifications made it clear they had to be paid according to American wage and hour laws.

The low wages fit into the larger child care picture in the United States, in which care is expensive but also doesn’t pay workers very much. “It’s one more signal that the child care system is broken,” said Helen Blank, director of child care and early learning at the National Women’s Law Center.

The current situation doesn’t work for anyone. “It’s broken on both sides,” Blank pointed out. “Parents are really struggling to pay for child care … then the people who are paid for child care don’t get paid enough, don’t get benefits, and don’t get treated well.”

Median pay for U.S. residents who provide child care is just $9.38 an hour, more than what au pairs can expect but on par with fast food employees, bar tenders, and parking lot attendants and less than people who care for animals in zoos or homes. Their pay increased just 1 percent between 1997 and 2013 — barely keeping up with the rising cost of living. At the same time, however, the cost of care for an infant can reach as much as $16,500 a year, on average, and eats up a bigger portion of families’ budgets than food, rent, or, in many states, public college tuition.

So au pairs can be “a solution for families,” Blank noted. The complaint itself notes that “the sponsors extract premiums from families seeking affordable childcare with the sales pitch that even with significant sponsor fees, au pairs are significantly cheaper than other childcare options available in the United States.” In many cases, this is likely true.

Even if the au pairs prevail in their lawsuit against the agencies, it won’t fix this broken system. But Deetlefs hopes it changes things for people brought over to care for American children. She herself was fired from her position when she got involved in the lawsuit and is currently back home in South Africa. But she says it’s not about her. “The whole purpose for me is to make it better for the au pairs that come after us,” she said. “We already had a bad experience and I wish to spare them that.”

This blog was originally posted on Think Progress on July 28, 2015. Reprinted with permission.

About the Author: The author’s name is Bryce Covert. Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.