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Au Pairs Strike Back Over Wages And Job Duties: What Family Employers Need To Know

The National Domestic Workers Alliance (NDWA) claims in a new report that thousands of au pairs who come to the U.S. each year are treated as underpaid domestic servants.

The U.S. State Department runs an au pair program that claims to provide a "mutually rewarding, intercultural opportunity" to U.S. host families and non-U.S. citizens between the ages of 18 and 26. Benefits for participants include room, board, pay for childcare work, and up to $500 toward academic work.

However, in reality, because the program is not well-regulated, many hosts require au pairs to perform non-childcare tasks banned under the program. According to the NDWA, many of the tens of thousands of au pairs participating in the program work more than 45 hours cleaning, cooking, and gardening.

The report also found that Fair Labor Standards Act (FLSA) protections are not enforced and au pairs receive a flat, weekly rate that equates to $4.35 per hour. Nearly half of the au pairs interviewed had paid between $1,500 and $2,500 in recruitment and sponsor fees to participate in the program.

In response, more than 900,000 current and former au pairs filed a class action lawsuit and have alleged "that 15 agencies designated by the State Department as au pair sponsors violated minimum and overtime laws."

Similarly, the State Department's J-1 Summer Work Travel Program has faced criticism for a lack of oversight and violations of FLSA labor laws. In 2011, participants working at a Hershey's chocolate factor staged a walk out, alleging the employer threatened them with deportation if they complained about abusive working conditions. In 2013, foreign college students on cultural work exchange visas went on strike, alleging that they had to work 20 hour shifts at McDonald's and pay unfairly high rent for cramped quarters. Kate Gibson "'Au pairs' in U.S. often treated as servants, critics say" cbsnews.com (Aug. 20, 2018). 


Commentary and Checklist

Family employers who use au pairs or Summer Work Travel Program participants must make sure that they receive the same FLSA protections as other staff.

First, only require staff to perform tasks that are part of the duties listed in their job description. The duties of an au pair center around child care and not domestic work. For example, do not require an au pair to clean your home, but you can require an au pair to keep his or her space clean.

Second, do not require the au pair to work more hours than allowed. Au pairs should have the freedom to go to school and to have time for themselves.

Third, pay au pairs what they are owed. Be very careful about deducting wages or charging au pairs expenses related to their stay.

The risks surrounding an au pair can also extend to other staff.

Do not ask chefs, drivers, or nannies to do housework outside of their normal job duties (e.g., it is okay to expect chefs to keep the kitchen clean). Hire housekeepers to clean your home, so au pairs or nannies can keep their attention at all times on the children.

If you supply room and board as part of a staff member’s wages, the value of the room and board must be fair. Keep a record of your costs in providing lodging and use that to calculate its value.

If staff live in the home, make sure they have sufficient time off. Do not ask live-in staff to perform work duties on their off time. Similarly, never ask any staff to perform work duties during their lunchtime or other unpaid break periods. Break periods must be documented.

Family employers must make sure their practices meet the requirements of state and local wage and hour laws, as well as federal law. This will require a consultation with your local legal counsel.

Never threaten a staff member with deportation, or otherwise try to stop a staff member from complaining about wage and hour violations or unsafe working conditions. If a staff member voices a concern, immediately investigate the matter and take remedial steps to correct any wrongdoing.

Consider the following to adhere to wage and hour laws:
 

  • Pay staff the federal minimum wage, or the state minimum wage if it is higher;
  • Pay staff promptly after each pay period, making sure that delays in pay do not occur;
  • Fairly compensate staff for all time worked, which may include meetings or other times they are required to be at work that are outside of their normal duties;
  • Pay staff overtime rates of one-and-a-half times their hourly pay for hours worked over 40 hours per week; and
  • Keep accurate and complete payroll records. Without records, a family employer has no chance of successfully defending a wage and hour claim.
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