California Au Pair Laws

The state of California passed the Domestic Worker Bill of Rights (AB 241) in 2013. Au pairs are not explicitly included nor excluded from the CA DWBOR.

DISCLAIMER: Please consult your attorney about your personal legal situation. General, publicly available information provided in this article does not constitute legal advice.

Advocacy Groups

Do you know about an au pair or host family advocacy group specific to the state of California? Please let us know at [email protected] so we can include their information here.

California Au Pair Laws

Summary

Inclusion/ Exclusion of Au Pairs

Federal:

Regulation is specific to the au pair program.

CA DWBOR:

Au pairs are not explicitly included nor excluded.

Wages and Deductions

Federal:

"Sponsors shall require that au pair participants... are compensated at a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the Fair Labor Standards Act as interpreted and implemented by the United States Department of Labor."

The pay of au pairs as interpreted by the United States Department of Labor base on the Fair Labor Standards Act is a minimum stipend of $195.75/week for maximum of 45 hours. (The stipend is based on 45 hours per week at the federal minimum wage of $7.25/hour minus 40% for room and board.)

CA DWBOR:

“Domestic workers are entitled to the minimum wage” under Wage Order No. 15.

January 1, 2020 $12.00/hour
January 1, 2021 $13.00/hour
January 1, 2022 $14.00/hour
January 1, 2023 $15.00/hour
(some cities and counties have higher minimum wage rates)

“Live-in domestic workers…are entitled to overtime for hours worked over nine (9) in a day and for the first nine (9) hours worked on the sixth and seventh consecutive day of the workweek. Live-in employees are entitled to double time (2 x the regular rate of pay) for hours worked over nine (9) hours on the sixth and seventh consecutive day of workweek.” Wage Order No. 15

“When credit for meals or lodging is used to meet part of the employer’s minimum wage obligation, the amounts so credited may not be more than the following…
Room occupied alone $56.43 per week…
Breakfast $4.34…
Lunch $5.97…
Dinner $8.01″ (Wage Order No. 15. as of January 1, 2020)

“Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee’s work shift. Deductions shall not be made for meals not received or lodging not used.
If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein.” (Wage Order No. 15.)

Hours and Duty Restrictions

Federal:

"Au pair participants are obligated to provide child care services to not more than 10 hours per day or more than 45 hours per week."

CA DWBOR:

“A LIVE-IN employee shall have at least 12 consecutive hours free of duty during each workday of 24 hours, and the total span of hours for a day of work shall be no more than 12 hours, except under the following conditions:
(1) The employee shall have at least three (3) hours free of duty during the 12 hours span of work. Such off-duty hours need not be consecutive, and the schedule for same shall be set by mutual agreement of employer and employee, provided that
(2) An employee who is required or permitted to work during scheduled off-duty hours or during the 12 consecutive off-duty hours shall be compensated at the rate of one and one-half (1 1/2) times the employee’s regular rate of pay for all such hours worked.” Wage Order No. 15

Room and Board

Federal:

"Sponsors shall not...place the au pair with a family who cannot provide the au pair with a suitable private bedroom"
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 provides protections to au pairs on J-1 visas in the USA. Au pairs have "the right to...Housing: If your employer provides housing, it should be clean and safe. You must be allowed to leave your housing during non-working hours. Bathrooms: Bathrooms should be clean and accessible. Your employer should grant you access to bathroom facilities as needed."

CA DWBOR:

“Meal means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. Lodging means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed.” Wage Order No. 15

Separation of Employment

Federal:

Au pair agencies require host families to provide room and board for at least two weeks, the majority of the agencies require host families to continue to provide room and board for an au pair until they depart to another family or to their home country.

CA DWBOR:

N/A

Meal Periods and Rest Breaks

Federal:

Au Pairs are on duty, and therefor compensated, when they are not free to leave. On duty hours can not exceed 10 hours per day and 45 hours per week.

CA DWBOR:

“No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes…Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an on duty meal period and counted as time worked. An on duty meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty.” Wage Order No. 15

“Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.” Wage Order No. 15

“If an employer fails to provide an employee a meal [or rest] period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.” Wage Order No. 15

 

Day of Rest

Federal:

Au pairs "receive a minimum of one and one half days off per week in addition to one complete weekend off each month".

CA DWBOR:

“No LIVE-IN employee shall be required to work more than five (5) days in any one workweek without a day off of not less than 24 consecutive hours except in an emergency as defined in subsection 2(D), provided that the employee is compensated for time worked in excess of five (5) workdays in any workweek at one and one-half (1 1/2) times the employee’s regular rate of pay for hours worked up to and including nine (9) hours. Time worked in excess of nine (9) hours on the sixth (6th) and seventh (7th) workdays shall be compensated at double the employee’s regular rate of pay.” Wage Order No. 15

“An employee may be employed on seven (7) workdays in one workweek with no overtime pay required when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday there of do not exceed six (6).” Wage Order No. 15

“The provisions of Labor Code Sections 551 and 552 regarding one (1) day’s rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day’s rest in seven (7).” Wage Order No. 15

Vacation and Sick Time

Federal:

"Au pairs "Receive two weeks of paid vacation"

Sick time is technically unlimited because stipend is paid weekly regardless of hours worked.

CA DWBOR:

N/A

Insurance

Federal:

"Sponsors shall require each exchange visitor to have insurance in effect which covers the exchange visitor for sickness or accident during the period of time that an exchange visitor participates in the sponsor’s exchange visitor program."

CA DWBOR:

N/A

Basic Rights

Federal:

William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 provides protections to au pairs on J-1 visas in the USA. Au pairs have "the right to:

  • Be paid fairly
  • Be free from discrimination
  • Be free from sexual harassment and sexual exploitation
  • Have a healthy and safe workplace
  • Request help from union, immigrant, and labor rights groups
  • Leave an abusive employment situation
  • Retain their passport and other legal documents...
  • Make a formal complaint or file a lawsuit against your employer while you are working or after you leave your employer. If your employer takes action (or retaliates) against you for doing so, they are violating the law.)"

Au pairs are also already covered under Federal, State, and local basic rights laws. For example:

  • The right to have possessions of personal effects including their their passports and/or documents.
  • The right to not be recorded while using the bathroom, in private living quarters, dressing or changing.
  • The right to not be monitored or recorded during private communications.
  • The right to not sign a written agreement that waives their rights
  • Etc.

CA DWBOR:

“If your employer discriminates or retaliates against you in any manner whatsoever (for example by terminating you or giving you fewer hours), you can file a discrimination/ retaliation complaint with the Labor Commissioner’s Office. Alternatively, you can file a lawsuit against your employer in court.” Wage Order No. 15

Participant Monitoring

Federal:

"Local organization representatives are
(1) required to be within "one hour’s driving time"
(2) "authorized to act on the sponsor’s behalf in both routine and emergency matters"
(3) "maintain a record of all personal monthly contacts (or more frequently as required) with each au pair and host family"
(4) "provided adequate support services by a regional organizational representative"
(5) "responsible for no more than fifteen au pairs and host families" if they are "not devoting their full time and attention to their program obligations."

Local organization representatives are
(1) required to be within "one hour’s driving time"
(2) "authorized to act on the sponsor’s behalf in both routine and emergency matters"
(3) "maintain a record of all personal monthly contacts (or more frequently as required) with each au pair and host family"
(4) "provided adequate support services by a regional organizational representative"
(5) "responsible for no more than fifteen au pairs and host families" if they are "not devoting their full time and attention to their program obligations."

CA DWBOR:

N/A

Written Contract

Federal:

"Sponsors shall not...place an au pair with a host family unless a written agreement between the au pair and the host family detailing the au pair’s obligation to provide child care has been signed by both the au pair and the host family prior to the au pair’s departure from his or her home country...Such agreement shall limit the obligation to provide child care services to not more than 10 hours per day or more than 45 hours per week."

CA DWBOR:

“Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee.” Wage Order No. 15

“An on duty meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.” Wage Order No. 15

Au Pair’s Rights to Information

Federal:

"Sponsors shall provide au pairs, prior to their departure from the home country, with the following information:
(1) A copy of all operating procedures, rules, and regulations, including a grievance process, which govern the
au pair’s participation in the exchange program;
(2) A detailed profile of the family and community in which the au pair will be placed;
(3) A detailed profile of the educational institutions in the community where the au pair will be placed, including the financial cost of attendance at these institutions;
(4) A detailed summary of travel arrangements; and
(5) A copy of the Department of State’s written statement and brochure regarding the au pair program."

"Sponsors shall...provide informational materials to prospective exchange visitors which clearly explain the activities, costs, conditions, and restrictions of the program;"

"Sponsors shall provide exchange visitors with pre-arrival materials including, but not limited to, information on:
(1) The purpose of the Exchange Visitor Program;
(2) Home-country physical presence requirement;
(3) Travel and entry into the United States;
(4) Housing;
(5) Fees payable to the sponsor;
(6) Other costs that the exchange visitor will likely incur (e.g., living expenses) while in the United States;
(7) Health care and insurance; and
(8) Other information which will assist exchange visitors to prepare for their stay in the United States."

CA DWBOR:

“Every employer shall keep a copy of [Wage Order No. 15] order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request.” Wage Order No. 15

Family’s Rights to Information

Federal:

"Sponsors shall:
(1) Inform all host families of the philosophy, rules, and regulations governing the sponsor’s exchange program and provide all families with a copy of the Department of State’s written statement and brochure regarding the au pair program;
(2) Provide all selected host families with a complete copy of Department of State-promulgated Exchange Visitor Program regulations, including the supplemental information thereto;"

CA DWBOR:

N/A

Reporting Hotline

Federal:

"The State Department has activated a helpline to ensure the health and safety of its exchange participants, including au pairs. All participants have a right to be treated fairly and to report abuse without retaliation or threat of program cancellation. Among other prohibitions, no sponsor may threaten program termination, or otherwise retaliate against an au pair solely because he or she has instituted a complaint or taken action to gain assistance from an outside entity regarding a complaint. Au pairs can contact the State Department at any time via the hotline 1-866-283-9090 or at [email protected]."

CA DWBOR:

Reporting is handled city by city. Phone numbers and addresses are available in Wage Order 15.

Au Pair Requirements

Federal:

"All participants in a designated au pair exchange program:
(1) Are between the ages of 18 and 26;
(2) Are a secondary school graduate, or equivalent;
(3) Are proficient in spoken English;
(4) Are capable of fully participating in the program as evidenced by the satisfactory completion of a physical;
(5) Have been personally interviewed, in English, by an organizational representative who shall prepare a report of the interview which shall be provided to the host family; and
(6) Have successfully passed a background investigation that includes verification of school, three, non-family related personal and employment references, a criminal background...and a personality profile."

CA DWBOR:

N/A

Family Requirements

Federal:

"Sponsors shall adequately screen all potential host families and at a minimum shall:
(1) Require that the host parents are U.S. citizens or legal permanent residents;
(2) Require that host parents are fluent in spoken English;
(3) Require that all adult family members resident in the home have been personally interviewed by an organizational representative;
(4) Require that host parents and other adults living full-time in the household have successfully passed a background investigation including employment and personal character references;
(5) Require that the host family have adequate financial resources to undertake all hosting obligations;
(6) Provide a written detailed summary of the exchange program and the parameters of their and the au pair’s duties, participation, and obligations; and
(7) Provide the host family with the prospective au pair participant’s complete application, including all references."

CA DWBOR:

“Every employer shall keep accurate information with respect to each employee including the following:
(1) Full name, home address, occupation and social security number.
(2) Birth date, if under 18 years, and designation as a minor.
(3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.
(4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee.
(5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request.” Wage Order 15.

“Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately, an itemized statement in writing showing:
(1) all deductions;
(2) the inclusive dates of the period for which the employee is paid;
(3) the name of the employee or the employee’s social security number; and
(4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item.” Wage Order No. 15

“All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee’s records shall be available for inspection by the employee upon reasonable request.” Wage Order No. 15

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