Hi! Abbie and Maddie here. The Massachusetts Attorney General ruled that au pairs are protected under the Massachusetts Domestic Workers Bill of Rights. Among other things, this legal decision means that au pairs in MA must be paid the local minimum wage. Cultural Care appealed and the First Circuit just ruled in favor of Massachusetts.
One of the many reasons we started this blog is to save other host parents time. And to provide a central place for unbiased information. We also believe in reading original documents, not just other people’s interpretations.
Below we have a quick summary of the issues, what it means, resources and links, and more information about domestic workers in general.
DISCLAIMER: Please consult your attorney about your personal legal situation
On December 2nd, 2019, the First Circuit United States Court of Appeals ruled in favor of Massachusetts over Cultural Care.
There are two main questions addressed in the lawsuit:
- Are au pairs domestic workers or cultural exchange visitors?
- Do host families need to pay au pairs the state minimum wage or the federal minimum wage?
The National Domestic Workers Alliance has been working at the state level to create laws. Someday they’d like to have a national bill of rights. So far, nine states have passed laws extending labor protections to domestic workers: Oregon, California, Connecticut, Illinois, New York, Massachusetts, Hawaii, and Nevada. Some cities, such as Seattle, have also passed their own laws.
Massachusetts believes that au pairs are domestic workers rather than exchange visitors or students. Because they are workers, they must be paid at the higher state minimum wage.
Cultural Care has promised to appeal again and is in contact with host families in Massachusetts on what to do.
Resources and Links
Here are the links we’ve found so far, both primary sources and news articles. If we’re missing any, please feel free to email us at [email protected]
- Universal HUB Summary – This article is a great, concise summary of the ruling itself. It includes quotes from the ruling, as well as a PDF copy of the ruling itself at the end of the article.
- First Circuit Court of Appeals – Search for case number 17-2140. That will lead you to the full court Opinion (publicly accessible) and the Docket Sheet (requires PACER login).
- Boston Globe – This article talks about the affects of the law on both the host families and the au pairs.
- MS Magazine This article describes the background of the National Domestic Workers Alliance and their feelings of victory after the ruling.
- PageSuite General summary, nothing much more than the other articles say. PageSuite is a digital publishing solution, so not too sure where this article is coming from. The byline at the end is from The Globe.
- State, city, and general domestic worker links:
- California Domestic Worker Bill of Rights
- Connecticut Act Concerning Domestic Workers and House Bill 6931 (open File No. 887)
- Hawaii Domestic Workers Rights
- Illinois Domestic Workers’ Bill of Rights Act
- Massachusetts Domestic Workers
- Nevada Domestic Worker’s Bill of Rights pdf (no website)
- New York Domestic Workers’ Bill of Rights
- Oregon Domestic Service
- Seattle Domestic Workers Ordinance
- Domestic Employers Network
- Wikipedia entry on Domestic Workers Bill of Rights
New Links Published After 12/17/2019
- Statement from Will Brownsberger Massachusetts Stare Senator
- WGBH NEWS Families With Au Pairs Struggle with Court Ruling
I have an au pair in Massachusetts, what do I do now?
Are you a host family in Massachusetts?
The first thing you need to do is seek legal counsel. The penalties for violating the MA Domestic Workers Bill of Rights are extremely steep. Workers can be awarded up to three times their entitled wages plus legal fees! It also looks like the law may be retroactive for up to 3 years. You need to talk to a lawyer!
Make sure you’re in contact with your agency and local area counselor. If you are with Cultural Care, you may call 1-800-333-6056 or email [email protected]
Massachusetts families are also encouraged to contact Senator Elizabeth Warren and Attorney General Maura Healey’s office. They need to hear about the impact this decision will have on your family. You might also want to include your concerns about the impact of this ruling on the au pair cultural exchange program.
How does this change the stipend for Massachusetts au pairs?
We want to start of by saying that this decision only affects au pairs and host families in the state of Massachusetts.
The current au pair stipend of $195.75 is based on the federal minimum wage of $7.25/hour. If you take $7.25/hour x 45 hours then you get $326.25. If you take away 40% for room and board, then 60% of the weekly wage is their stipend. (0.60 x $326.25 = $195.75)
For Massachusetts au pairs, the new stipend might be as high as $570 per week. The state minimum wage today is $12/hour (it will go up to $12.75 starting January 1st 2020). Also, host families must pay overtime (time and a half) for any hours over 40 hours per week. So an au pair’s maximum weekly wage is $570. ($12/hour x 40 hours = $480, $18/hour x 5 hours = $90, $480 + $90 = $570). The minimum weekly wage is still $195.75 as set by the State Department.
Also, if you meet the requirements you can deduct for room and board. But it is a flat dollar amount, not a percentage. The deductions are $1.50 for breakfast, $2.25 for lunch, $2.25 for dinner per day. Housing deductions are $35 per week. If you take $6/day for food x 7 days per week = $42, add $35 for housing and you can deduct a total of $77 per week.
Here are some sample stipend changes. Each case uses $12 per hour, minus the room and board ($77), and overtime is time and a half.
- 10 hours: $120 – $77 does not equal the federal minimum so stipend = $195.75
- 20 hours: $240 – $77 does not equal the federal minimum so stipend = $195.75
- 30 hours: $360 – $77 = $283 weekly stipend
- 40 hours: $480 – $77 = $403 weekly stipend
- 45 hours: $480 + $90 (overtime) – $77 = $493 weekly stipend
Some of the articles online say that the stipend is increasing by $250 per week, which means the new stipend is roughly $450. We’re not sure how they’re calculating their numbers. Probably they’re calculating $12 / hr times 45 hours per week (no overtime)?
The stipend is still in addition to the agency fee, educational component, and all the rest. (See our post on How much does an au pair cost?)
DISCLAIMER: Please consult your attorney about your personal legal situation
What does the Massachusetts Domestic Workers Bill of Rights actually say?
Here’s a summary of some things that apply to Massachusetts au pairs and host parents from the page for Domestic Workers in MA.
The host family is the employer, not the au pair agency. The agency just coordinates the visa and ensures program requirements are met.
The easy requirements:
- “Every domestic worker must receive a notice of their employment rights”
- “Employers must give domestic workers … a written agreement…in a language the worker easily understands, signed by the worker and employer, and made before work begins.” Sample employment agreement
- “Employers of domestic workers must keep payroll records and provide paystubs. Records should be kept for 3 years.” Sample timesheet for domestic workers
- “Domestic workers who work 40 or more hours a week must get at least 1 full day (24 hours) off each week and 2 full days (48 hours) off each month.” (meets federal au pair requirements)
- “The employer must pay for all meal, rest, and sleeping periods, unless the worker has no work duties and is allowed to leave during those times.”
- Workers have the right to privacy and the freedom to come and go. This includes not monitoring private spaces, limiting or recording private communications, taking belongings or passports, and acts of force.
- “Employers must not discriminate in hiring, pay, or other terms of employment”
- “Employers who have phone or internet service must give workers free and reasonable access to those services. If they do not have phone or Internet service, they must allow reasonable opportunities to access those services elsewhere at the workers’ own expense.”
- “An employer must not punish or discriminate against a domestic worker for exercising his or her rights.”
- “The Earned Sick Time Law requires employers to track the accrual and use of earned sick time.” “Employers with fewer than 11 employees must provide earned sick time, but it does not need to be paid.”
Overtime and Minimum Wage
“If the worker then works more than 40 hours during the week, then the worker must be paid overtime.”
“Overtime pay is at least 1.5 × the regular rate of pay for each hour over 40 hours.”
Effective Minimum Wage
January 1, 2019 $12.00 per hour
January 1, 2020 $12.75 per hour
January 1, 2021 $13.50 per hour
January 1, 2022 $14.25 per hour
January 1, 2023 $15.00 per hour
Deductions for meals and housing
“Food and drinks – Deductions are allowed only if the worker can bring, prepare, store, and eat and drink the foods s/he prefers. If the worker cannot do so because of household dietary restrictions, then the employer may not charge for the food or drink provided to the worker. The employer may charge for the actual cost of the food and drink, up to $1.50 for breakfast and $2.25 for lunch or dinner.”
“Housing – An employer must not deduct the cost of a room or other housing if the employer requires the worker to live in that place. An employer may deduct the cost of housing only if the worker chooses to live there and the housing meets the local and state health code standards for heat, water, and light. The employer must not charge more than $35 a week for a room with 1 person”
Live-in workers: termination
“Unless a domestic worker is fired for cause, the employer must give the worker:
- Written notice; and
- At least 30 days of housing where the worker is now or in similar housing OR severance pay equal to average pay for 2 weeks. If the employer chooses to provide housing at another location or severance pay, the worker must have at least 24 hours to move out.
If the employer fires a domestic worker for cause, the employer must provide:
- Advance written notice; and
- A reasonable opportunity of at least 48 hours to move out.
If the employer makes a written statement in good faith saying that the worker did something that harmed the employer or his/her family or household, the employer can:
- End the employment without notice, and
- Give the worker no severance pay or time to find new housing.
Important! No matter what the reason for ending the employment, the employer must pay the worker all wages owed, including all earned, unused paid vacation time, on the last day of work.”
Injuries at work
“A worker who gets hurt while on the job may be eligible for workers’ compensation benefits. Even if the employer does not have worker’s compensation insurance, workers who miss more than 5 days of work because of work-related injury or illness may be able to get compensated for medical care and lost wages.”
Need a place to vent?
Are you as worried about this ruling as we are? We welcome questions and just general venting in the My Au Pair and Me Host Family Group on Facebook. (The standard “we are not law professionals” disclaimer stands for the Facebook group, but it’s just nice to talk to other host families.)