Note: This blog post is about the class-action lawsuit brought by au pairs against the 15 agencies. If you’re looking at laws individual states and cities are passing regarding au pairs as domestic workers, please see our post about how you can take action regarding new au pair laws.
In 2014, the nonprofit group Towards Justice filed a class-action lawsuit on behalf of au pairs against the 15 au pair agencies. Thursday July 18, 2019, a judge pronounced a final ruling on the settlement.
What’s the Lawsuit About?
It’s mostly about the stipend.
Have you ever wondered how the agencies come up with $195.75 as the minimum weekly stipend for au pairs? It’s because that’s 60% of the federal minimum wage for a 45-hour work week. The federal minimum wage was set at $7.25 per hour in 2009 and has not been updated since.
$195.75 / 45 hours = $4.35/hour
$4.35/hr = 0.60 x $7.25/hour (or 60% of $7.25/hr)
The argument is that au pairs are providing childcare, working at a salary of just over $4 per hour and comparing that wage to indentured servants, human trafficking, and other exploitive working conditions.
HOWEVER…That’s not their complete salary, only the taxable salary. Their complete salary is supposed to include room and board, which means the other 40% of their salary is supposed to be rent, food, utilities, and everything else. The stipend is meant to be more of an allowance and spending money, not the complete salary.
But what about states or cities with a higher minimum wage than the federal minimum wage? The agencies argue that the 40% of the au pair’s salary covered by room and board still meets the local minimum wage because the cost of living is higher in those areas. For example, Seattle has a $15 minimum wage but the cost of rent in Seattle (or San Francisco, New York, etc.) is much higher than, say, the cost of rent in Texas or Wyoming.
Also Muddying the Waters
Some host parents have abused the definition of room and board. They’ve made au pairs pay the car loan payment, the car insurance, utility bills like electricity and water, or restricted what the au pair was allowed to eat. Host parents also sometimes ask au pairs to work overtime (not allowed in the first place) without paying extra money, which isn’t cool. Or host parents ask the au pair to do tasks not associated with childcare (gardening, pet care, moving, etc.)
Yes, there are bad au pairs as well, but they are limited by age and by their visa. The maximum, consecutive amount of time they can spend in the United States is two years, tracked by the Department of State.
If a host family is so awful they get kicked out of an agency and not allowed to host an au pair again, there is no system in place to prevent that family from hosting through a different agency. Theoretically, a bad family could work their way through all 15 agencies until they don’t need childcare anymore.
What Does This Mean Going Forward?
Within thirty (30) days after the Effective Date, and going forward, Defendants (and their agents, where applicable) will provide a statement to host families and au pairs to the effect that the weekly au pair stipend is a minimum payment requirement and host families and au pairs are free to agree to compensation higher than the legally applicable minimum.
Both you and your au pair should receive mail and/or email from your agency that you and your au pair can negotiate a higher stipend.
You might point out all of the “extras” that au pairs might not realize go into their room and board (like car payments, insurance, phone bill, etc. Check out our blog post How much does an au pair cost? for our breakdown of au pair costs.) Au pairs might argue for more money if they have actual teaching experience, or based on number or age of kids in the family, for example.
Also from the brief:
Effective upon the Effective Date, [host families] shall be released and forever discharged by all Settlement Class Members (the “Releasing Parties”) from any and all causes of action, judgments, liens, indebtedness, costs, damages, penalties, expenses, obligations, attorneys’ fees, losses, claims, liabilities and demands of whatever kind…
It’s good news that the terms of the release of liability that the au pairs (a.k.a. Settlement Class Members) agreed to includes host families in addition to sponsor agencies. So, host families should not need to worry about future legal action from the au pairs covered in this settlement unless there are other, unrelated claims.
It looks as if no new claims are being accepted (http://www.aupairclassaction.com/claim). If you hosted au pairs from 2009 to late 2018 and they didn’t register before the May 2019 deadline, it’s probably too late.
Personally, we hope there will be some sort of system, or at least a watch list, set up between agencies to track the bad host families that give the rest of us a bad name.
Where Can I Find Out More?
If you do a Google search for “au pair lawsuit” you’ll see lots of stories from lots of places. Sometimes, though, it’s nice to go straight to the source and read it for yourself.
Towards Justice is the non-profit legal agency bringing the suit on behalf of the au pairs. Their webpage, Fighting Wage Suppression for Childcare Workers on Au Pair Visas: Beltran, et al v. Interexchange, Inc., et al, includes case documents and a list of press releases through January 2019.
AuPairClassAction.com is the website set up to help au pairs and host families make claims on the class action suit. This website also includes links to the source court documents.
You can also read an email sent to Abbie by Cultural Care.
July 2019 Stories
- “About 10,000 au pairs to get paid in class-action settlement” Associated Press (AP News) (most news outlets pick up and reprint articles from AP News and Reuters)
“Au Pair Lawsuit Leads to $65 Million Settlement” Westword
January 2019 Stories
- “Au Pair Sponsor Agencies Settle Wage Lawsuit, Offer $65.5 Million In Back Pay” National Public Radio (NPR)
- “Au pairs win $65.5 million settlement in Denver lawsuit” Associated Press (AP News)
- “Thousands of au pairs could share in $65.5 million U.S. settlement” Reuters
- “Au Pairs Reach $65.5 Million Settlement Over Wages” Wall Street Journal
- “Au pair lawsuit reveals collusion and large-scale wage theft from migrant women through State Department’s J-1 visa program” by Economic Policy Institute Working Economics Blog