A federal appeals court today dismissed a lawsuit by a private agency that places au pairs in Massachusetts - and two families that have used its services - against the state Attorney General's office, which had determined their clients should have to pay foreign au pairs at least the state minimum wage of $12 an hour, rather than the federal minimum wage of $7.25 an hour.
It is hardly evident that a federal foreign affairs interest in creating a "friendly" and "cooperative" spirit with other nations is advanced by a program of cultural exchange that, by design, would authorize foreign nationals to be paid less than Americans performing similar work.
Culture Care Au Pair of Cambridge and the two families had were challenging AG Maura Healey's effort to get higher wages and even overtime for foreign au pairs, comparable to what domestic servants have to be paid under state employment laws - and which would require sleep and even meal time to be included as hours in many cases. They charged the effort was unconstitutional because it sought to override regulations for a State Department program that refers to the federal minimum wage as part of its conditions for allowing foreign college students to come here and spend a year as an exchange students while living in American couples' homes and caring for their children.
That, they argued, violated the "Supremacy" clause of the Constitution, under which federal laws and regulations normally override any state regulations.
Hogwash, the US Court of Appeals for the First Circuit in Boston ruled today, if in more detailed and legally specific terms, in an 81-page decision.
The court started with a 1976 Supreme Court case involving the hiring of illegal aliens in California, in which the justices unanimously ruled that, among other things, while the federal government does indeed have "supremacy" when it comes to fundamental issues of immigration, regulation of worker standards and pay was "a quintessentially local area of regulation."
The court rejected the argument by the agency and families that another court case, involving workers with jobs the existence of which are "inherently federal in character" trumps that, because the au pairs wouldn't be here without the State Department program.
Nope, the court said, because the Massachusetts employment laws in question:
Are generally applicable to all domestic workers. Thus, they are not predicated on the existence of the federal au pair exchange program regulations.
Also, the court continued, the detailed State Department regulations refer solely to the host agencies that bring au pairs into the country, and are completely silent on the employer/employee relationship between host families and the au pairs - which is the relationship government by state minimum-wage and hours laws.
For, [the California case] makes clear, the mere fact that a state law implicates the interests of persons who are the subject of federal regulation, even with respect to immigration, does not alone provide a basis for inferring that the federal regulatory scheme was intended to preempt a field that encompasses such a state law, at least when it concerns a matter of such quintessentially local concern as employment.
The court next rejected an argument that by setting federal minimum standards for pay and hours, the federal government was attempting to set uniform national standards for au pairs. That may be true, but the regulations nowhere state that au pairs can't be paid more than the federal minimum - or be paid overtime if they work more than 40 hours a week, even in a state like Massachusetts, which in many cases would count hours spent sleeping in a host's home towards those hours.
Only, it isn't true, the court continued: A preface to the State Department au-pair regulations that lists "objectives" of the program "does not refer to a federal governmental interest in setting a uniform national standard for either au pair participant wages or for host family recordkeeping requirements."
From all one can tell from the text of these provisions, in other words, the Au Pair Program operates parallel to, rather than in place of, state employment laws that concern wages and hours and that protect domestic workers generally, at least with respect to the obligations that such state law wage and hour measures impose on host families to do more than what the FLSA itself requires. Thus, the text of au pair exchange program regulations themselves does not supply the affirmative evidence that the state measures at issue will frustrate the federal scheme's objectives that the plaintiffs need to identify if they are to meet their burden to show obstacle preemption.
The plaintiffs - joined in an amicus brief by the Department of State - also warned that if they lost, almost nobody in Massachusetts could afford a foreign au pair, which would damage the international amity the program is supposed to promote. The court, though, said the plaintiffs supplied no proof of this and asked, if this were so, how anybody in Massachusetts could afford a live-in domestic nanny or maid, since they are subject to the state minimum-age and hours laws as well.