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An Au Pair is a nanny and a foreign exchange student in one. Under the Au Pair program, foreign nationals can come to the U.S. on a nonimmigrant J-1 visa to provide daycare services for host families. The Au Pair lives with their host family and can obtain a secondary or post-secondary education.
Federal law and regulations from the Department of State require that Au Pairs be given room and board and paid $195 per week. Massachusetts, however passed a law in 2014 that requires Au Pairs to be paid state minimum wage (currently $12 per hour), get overtime for hours worked over 40 in a week, get rest and meal breaks, and have the opportunity to contact their families back home.
That 2014 law was the crux of a recent case before the First Circuit Court of Appeals. Cultural Care, a Massachusetts-based company that finds Au Pair placements, challenged the Massachusetts Attorney General's enforcement of the 2014 state law. Earlier in 2019, a group of companies who sponsor Au Pairs with families settled a class action for over $65 million but did not admit to any wrongdoing.
The district court dismissed the claim, finding that federal law did not preempt Massachusetts state law.
Federal law, including regulations promulgated by federal agencies, can preempt state laws either explicitly or implicitly. Here, Cultural Care argued that the Department of State's requirements, which governs Au Pair placements at the federal level, implicitly preempted state law. Cultural Care also argued that Au Pairs are closer to exchange students than employees, and that the 2014 Massachusetts law detracted from the goal of the Au Pair program.
Like the district court, the panel was unconvinced. In a unanimous opinion, the judges found that nothing in Department of State requirements indicated that the DOS sought to put a ceiling on Au Pair pay. Further, the company failed to show affirmative evidence that the state law was a burden or incompatible with the Au Pair program.
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