Two Boston-area families with foreign au pairs and the agency that brought them over say they shouldn't have to pay them the $10 an hour the state requires for maids and other servants because au pairs are really here for cultural enrichment, not to work, and that taking care of their host families' kids is part of learning what America is all about.
In a lawsuit filed in US District Court in Boston this week against Attorney General Maura Healey, the families and Cultural Care Au Pair of Cambridge argue the state's insistence that foreign students be paid the same violates the federal laws and regulations that established an au pair program as a way to give foreign students a better appreciation of America by having them live with a host family while they're here:
The MA Act and MA Regulations relate exclusively to the labor code and “domestic workers” and have nothing to do with cultural exchanges or exchange visitors. Host Families, including the Host Family Plaintiffs, invest time and effort in treating their au pairs like family members who are guests in their home. They do so in order to enhance the cultural aspect of the exchange for both the families and the au pairs, but little incentive exists for investing such emotional capital if the au pairs hold the status and involve the cost of laborers.
Also, the suit alleges:
Because many, and probably most, Host Families will be unable or unwilling to pay a fee to the Sponsor in addition to the wage and education requirements and substantially higher State-imposed payments under state labor codes, CCAP and other State Department designated Sponsors will suffer material economic injury and in some instances will not be able to survive as on-going commercial enterprises.
The plaintiffs ask a judge to tell the state to leave them alone because Congress is the higher authority here:
Congress intended in enacting the permanent authorization act for the Au Pair Cultural Exchange Program to occupy the field with regard to the terms and conditions of that Program. The federal interest embodied in the Fulbright-Hays Act and the programs enacted pursuant to it, i.e., in fostering “a peaceful world in which freedom and justice under law will be the lot of all mankind,” precludes enforcement of state labor laws that defeat Congressional intent. Hence, field preemption separately and additionally precludes application of the MA Act and the MA Regulations to CCAP and to the Host Family Plaintiffs.