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Washington State Au Pair Laws – My Au Pair and Me

Washington State Au Pair Laws

Washington state does not currently have a domestic workers bill of rights and as of March 12, 2020 the proposed bill died. We will check back in January of 2021 when the WA Legislature starts hearing new bills. The city of Seattle passed a Domestic Workers bill of rights in 2018.

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

Are you an au pair or host parent in Washington State? Join the Au Pair Allies to stay up to date with the latest news and take action. The Au Pair Allies are a volunteer group of Au Pairs and Host Families who love the federal au pair program and are passionate about ensuring au pairs are treated fairly and have a great exchange experience in the United States.

Aupair Allies Webpage: https://www.aupairallies.org/

AuPair Allies Facebook Group: https://www.facebook.com/groups/aupairallies/

Washington State Au Pair Laws

Summary

  • Proposed DWBOR = Proposed Washington State bill HB2511-S An Act Relating to Providing Labor Protections for Domestic Workers as of 3/6/20
    • This bill died and will not go into effect

Inclusion/ Exclusion of Au Pairs

Federal:

Regulation is specific to the au pair program.

Original DWBOR:

Au pairs are not explicitly included nor excluded.

Proposed DWBOR:

” ‘Domestic worker’ does not include…An au pair participant who has been granted a J-1 visa for 16 participation in the federal department of state designated exchange visitor program governed by 22 C.F.R. Sec. 62.31″

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.)

Original DWBOR:

“A hiring entity employing a domestic worker shall pay the domestic worker at least the minimum hourly rate as provided by RCW49.46.020.” As of January 1, 2020 this rate is $13.50 per hour.

“A hiring entity employing a domestic worker shall pay the domestic worker an overtime wage at a rate of one and one-half times the worker’s regular rate for hours worked in excess of forty hours in a workweek.”

The bills do not provide any limitations on the types or amounts of deductions. Only that the deductions must be agreed to ahead of time in writing and signed by both parties.

Proposed DWBOR:

“A work group on domestic workers administered by the AGO is formed to make recommendations on… wage and hour models for domestic work, including but not limited to live-in care providers such as nannies and au pairs, and independent contractors.”

“The work group shall include at least one… current or former au pair…[and] an organization or agency representing au pairs…The work group shall report its findings and recommendations to the governor’s office, attorney general’s office, and appropriate committees of the legislature by April 1, 2021.”

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."

Original DWBOR:

N/A

Proposed 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."

Original DWBOR:

“For domestic workers living in the home of their hiring entities, the hiring entity must permit the domestic worker to cook and consume the worker’s own food, subject to reasonable restrictions based on the religious or health needs of the home’s residents.”

Proposed DWBOR:

N/A

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.

Original DWBOR:

“For live-in domestic workers, a minimum four-week notification period before termination of the employment relationship shall be provided… Notice of termination requirements do not apply if: The hiring entity terminates employment based on a good faith belief that the domestic worker has engaged in misconduct as defined in RCW 50.04.294 or if circumstances outside of the hiring entity or the hiring entity’s control apply.”

Proposed 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.

Original DWBOR:

Domestic workers are entitled 30 minute unpaid meal periods and 10 minute paid rest periods based on the number of consecutive hours they work. However, “If the nature of the work does not allow a domestic worker to be relieved of all duties and an uninterrupted meal break or intermittent rest breaks may be impractical or impossible, a hiring entity must compensate the domestic worker for that time at the standard rate of pay for that worker.”

Proposed DWBOR:

N/A

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".

Original DWBOR:

N/A

Proposed DWBOR:

N/A

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.

Original DWBOR:

The bills do not provide any requirements for paid sick time and vacation time. However, the terms of paid time off must be agreed to ahead of time in writing and signed by both parties.

Proposed DWBOR:

“A work group on domestic workers administered by the AGO is formed to make recommendations on… to increase access to the sick leave and paid family and medical leave”

Vacation and Sick Time

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."

Original DWBOR:

N/A

Proposed 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.

Original DWBOR:

“Domestic worker must have the right to retain personal effects, including any legal documents, including forms of identification, passports, or other immigration documents.”

“A hiring entity that employs a domestic worker may not…
(1) Engage in any form of discrimination and harassment
(2) Subject a domestic worker to conduct with the purpose or effect of unreasonably interfering with the domestic worker’s work performance by creating an intimidating, hostile, or offensive work environment
(3) Monitor or record, through any means, the activities of the domestic worker using a bathroom or similar facility, in the domestic worker’s private living quarters, or while the domestic worker is engaged in personal activities associated with dressing or changing clothes
(4) Monitor, record, or interfere with the private communications of a domestic worker
(5) Take any adverse action against a domestic worker because the domestic worker has exercised their rights”

Proposed DWBOR:

“Domestic worker must have the right to retain personal effects, including any legal documents, including forms of identification, passports, or other immigration documents.”

“A hiring entity that employs a domestic worker may not…
(1) Engage in any form of discrimination and harassment
(2) Subject a domestic worker to conduct with the purpose or effect of unreasonably interfering with the domestic worker’s work performance by creating an intimidating, hostile, or offensive work environment
(3) Monitor or record, through any means, the activities of the domestic worker using a bathroom or similar facility, in the domestic worker’s private living quarters, or while the domestic worker is engaged in personal activities associated with dressing or changing clothes
(4) Monitor, record, or interfere with the private communications of a domestic worker
(5) Take any adverse action against a domestic worker because the domestic worker has exercised their rights”

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."

Original DWBOR:

N/A

Proposed 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."

Original DWBOR:

There must be a written contract including “location where the work will be done; rate of pay, including overtime expectations and compensation for additional duties, if any; the work schedule at the time of hire including meal and rest breaks; if applicable, deduction agreements, information about days of rest, sick days, vacation days, personal days, and holidays; transportation, severance, and health insurance costs; and any fees or other costs for the domestic worker associated with expectations of employment.”

Proposed DWBOR:

N/A

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."

Original DWBOR:

“The attorney general’s office shall develop and make available a model disclosure statement which describes a hiring entity’s obligations and domestic worker’s rights under this chapter, in at least eight of the most commonly spoken languages in Washington state. The disclosure statement must include notice about any state law, rule, or regulation governing maternity disability leave and indicate that federal or local ordinances, laws, rules, or regulations may also apply. The model disclosure must also include a telephone number and an address of the department to enable domestic workers to obtain more rights, obligations, and enforcement.”

Proposed DWBOR:

“The Attorney General’s Office (AGO) must develop and make available a model disclosure statement describing a hiring entity’s obligations and domestic worker’s rights, in at least eight of the most commonly spoken languages in Washington State, and a model written employment agreement.”

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;"

Original DWBOR:

N/A

Proposed 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 jvisas@state.gov."

Original DWBOR:

“The attorney general’s office shall develop and make available a telephone number and an address of the department to enable domestic workers to obtain more rights, obligations, and enforcement.”

Proposed DWBOR:

N/A

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."

Original DWBOR:

N/A

Proposed 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."

Original DWBOR:

N/A

Proposed DWBOR:

N/A

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