Massachusetts Au Pair Laws

On December 2, 2019 the federal court of appeals confirmed that au pairs are covered under the 2015 Massachusetts Domestic Workers Bill of Rights. For more information on this decision see our blog Are Au Pairs Domestic Workers?

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

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Massachusetts Au Pair Laws

Summary

Inclusion/ Exclusion of Au Pairs

Federal:

Regulation is specific to the au pair program.

MA DWBOR:

“On December 2, 2019, a federal appeals court affirmed the dismissal of a lawsuit filed by Cultural Care Au Pair. This court decision confirmed what the Attorney General’s Office told Cultural Care in 2015: au pairs are domestic workers protected by the Massachusetts minimum wage, overtime, and Domestic Worker Bill of Rights (DWBOR) laws.” (2)

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.)

MA DWBOR:

Effective Minimum Wage (Chapter 151, Section 1)

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

“Overtime pay is at least 1.5 × the regular rate of pay for each hour over 40 hours.” (2)

“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.” (2)

“The employer must not charge more than $35 a week for a room with 1 person” (2)

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."

MA DWBOR:

N/A

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."

MA DWBOR:

“An employer may deduct from the wages of a domestic worker an amount for lodging if the domestic worker voluntarily and freely accepts, desires and actually uses the lodging and the lodging meets the standards for adequate, decent and sanitary lodging pursuant to chapters 111 and 151” (1)

“An employer may deduct from the wages of a domestic worker an amount for food and beverages if the food and beverages are voluntarily and freely chosen by the domestic worker.” (1)

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.

MA DWBOR:

“If a domestic worker resides in the employer’s household and the employer terminates employment without cause, the employer shall provide written notice and at least 30 days of lodging, either on-site or in comparable off-site conditions, or severance pay in an amount equivalent to the domestic worker’s average earnings during 2 weeks of employment. Neither notice nor a severance payment shall be required in cases involving good faith allegations that are made in writing with reasonable basis and belief and without reckless disregard or willful ignorance of the truth that the domestic worker has abused, neglected or caused any other harmful conduct against the employer, members of the employer’s family or individuals residing in the employer’s home.” (1)

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.

MA DWBOR:

” ‘working time’ shall include meal periods, rest periods and sleeping periods unless a domestic worker is free to leave the employer’s premises and use the time for the domestic worker’s sole use and benefit and is completely relieved of all work-related duties” (1) “When a domestic worker is required to be on duty for a period of 24 consecutive hours or more and unless a prior written agreement is made, all meal periods, rest periods and sleeping periods shall constitute working time.” (1)

 

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".

MA DWBOR:

“An employer who employs a domestic worker for 40 hours a week or more shall provide a period of rest of at least 24 consecutive hours in each calendar week and at least 48 consecutive hours during each calendar month and, where possible, this time shall allow time for religious worship. The domestic worker may voluntarily agree to work on a day of rest; provided, however, that the agreement is in writing and the domestic worker is compensated at the overtime rate for all hours worked on that day” (1)

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.

MA DWBOR:

“The Earned Sick Time Law requires employers to track the accrual and use of earned sick time.” (2)

“Employers with fewer than 11 employees must provide earned sick time, but it does not need to be paid.” (2)

“Workers must earn at least one hour of earned sick leave for every 30 hours worked.” (3)

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."

MA DWBOR:

“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.” (1)

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.

MA DWBOR:

“A domestic worker shall have a right to privacy under section 1B of chapter 214. An employer shall not restrict or interfere with a domestic worker’s means of private communication, monitor a domestic worker’s private communications, take any of the domestic worker’s documents or other personal effects or engage in any conduct which constitutes forced services or trafficking of a person in violation of sections 50 and 51 of chapter 265.” (1)

“Workers have the right to privacy, even if they live in the employer’s home. An employer must not: Monitor or record private living or sleeping spaces, or bathroom, dressing or undressing activities Limit, interfere with, monitor or record private communications Take, destroy, hide or keep passports or any documents or belongings Force an individual to work by: Hurting or restraining the worker, causing the worker financial harm or threatening to do so, or Abusing the law or legal process or by other illegal method” (2)

“Employers must not discriminate in hiring, pay, or other terms of employment” (2)

“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.” (2)

“An employer must not punish or discriminate against a domestic worker for exercising his or her rights.” (2)

 

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."

MA 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."

MA DWBOR:

“An employer who employs a domestic worker for 16 hours or more a week shall provide the following information:
(i) the rate of pay, including overtime and additional compensation for added duties or multilingual skills;
(ii) working hours, including meal breaks and other time off;
(iii) if applicable, the provisions for days of rest, sick days, vacation days, personal days, holidays, transportation, health insurance, severance and yearly raises and whether or not earned vacation days, personal days, holidays, severance, transportation and health insurance are paid or reimbursed;
(iv) any fees or other costs, including costs for meals and lodging; (v) the responsibilities associated with the job;
(vi) the process for raising and addressing grievances and additional compensation if new duties are added;
(vii) the right to collect workers’ compensation if injured;
(viii) the circumstances under which the employer will enter the domestic worker’s designated living space on the employer’s premises;
(ix) the required notice of employment termination by either party; and
(x) any other rights or benefits afforded to the domestic worker.” (1)

“Employers must give domestic workers who work 16 or more hours a week a written agreement that includes information about…Why and when the employer will enter the worker’s living space (live-in workers) What is “cause” for termination (live-in workers)…This agreement must be in written in a language the worker easily understands, signed by the worker and employer, and made before work begins.” (2)

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."

MA DWBOR:

“An employer shall provide a domestic worker with a notice that contains all applicable state and federal laws that apply to the employment of domestic workers.” (1)

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;"

MA 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]."

MA DWBOR:

Fair Labor Hotline (617) 727-3465 Monday-Friday, 10 a.m.-4 p.m.

File an on-line complaint https://www.mass.gov/how-to/file-a-workplace-complaint

File a minimum wage complaint https://www.mass.gov/how-to/file-a-minimum-wage-complaint

File a civil rights complaint https://www.mass.gov/how-to/file-a-civil-rights-complaint

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."

MA 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."

MA DWBOR:

“An employer who employs a domestic worker shall keep a record of wages and hours pursuant to section 15 of chapter 151.” (1)

Section 15 of chapter 151 requires: “name, address and occupation of each employee, of the amount paid each pay period to each employee, of the hours worked each day and each week by each employee…records shall be kept on file for at least 3 years.”

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