First Circuit Says Federal Au Pair Regulations Don’t Preempt Massachusetts Minimum Wage Laws

December 17, 2019

The First Circuit Court of Appeals published a decision on December 2, 2019 concerning the relationship between a federal program administered by the U.S. Department of State and aMassachusetts law that provides protections to domestic workers. In 2014, the Massachusetts Attorney General stated that starting September 2017 the Massachusetts state wage and hour laws would apply to the federal au pair program, meaning host families would have to pay au pairs at least the state minimum wage of $12, instead of the federal minimum wage of $7.25. In response, Cultural Care, Inc., an au pair placement agency based in Massachusetts, and two host families to which it assigned au pairs sued the Massachusetts Attorney General.


The case was dismissed by in the Massachusetts District Court, which ruled that federal law did not preclude states from enacting supplemental requirements or protections for childcare providers. On appeal, the plaintiffs challenged the Attorney General’s effort as unconstitutional and violative of the Supremacy Clause of the U.S. Constitution. Circuit Judge David Barron wrote the 81-page decision for a unanimous three-judge panel that affirmed that the au pairs in the state are afforded the same protection under state laws as other domestic workers.


An au pair can generally be described as an individual who provides household or childcare services in exchange for room and board. The federal au pair program administered by the U.S. Department of State pursuant to the Fulbright-Hays Act was created to promote international cultural exchange. As the First Circuit described in its Opinion, through the federal program, “foreign nationals may obtain a special type of visa and then be placed with host families in the United States, so that the foreign nationals may provide in-home childcare services to the host families while they also pursue their post-secondary school studies.”


The au pair program regulations contain a “wages and hours” provision that cross-references the federal Fair Labor Standards Act (“FLSA”). Under the FLSA, 29 U.S.C. § 206(a), "employer[s] shall pay to each of [their] employees" a minimum hourly wage that is currently set at $7.25 per hour. In 1974, Congress amended the FLSA so it would apply to domestic workers and their employers. Notably, Judge Barron pointed out that the FLSA also contains a clause providing: "[n]o provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter."


Following the discussion of the federal au pair program regulations and the FLSA, the First Circuit addressed the applicable state laws, including the Massachusetts Fair Wage Law, M.G.L. c. 151 § 1 et seq., and the Massachusetts Domestic Workers Bill of Rights Act (“DWBORA”), M.G.L. c. 149 §§190-191. The Massachusetts DWBORA was enacted in 2014 to protect the rights of domestic workers including home care workers, cleaners, and nannies. Further, the DWBORA authorizes the Attorney General to promulgate regulations to implement the law.


The Massachusetts Attorney General considers participants of the federal au pair exchange program to be “domestic workers” within the meaning of the DWBORA. Additionally, the parties in this appeal agree that au pairs were considered “employees” under the Massachusetts Fair Wage Law. So where is the dispute?


The plaintiffs argued that federal regulations governing the au pair program “impliedly” preempted state law under the Supremacy Clause of the U.S. Constitution. The Supremacy Clause provides that federal law “shall be the supreme Law of the land,” meaning that it will override any conflicting state laws and regulations. Here, the plaintiffs argued that the au pair exchange program heavily implicates issues of immigration and foreign affairs, areas that the Constitution has granted the federal government the authority to regulate, not the states. The First Circuit rejected this argument and acknowledged that although the federal government does have supremacy in the areas of immigration and foreign affairs, the state law measures at issue in this case concerned the regulation of workers – “a quintessentially local area of regulation.”


In addition to their constitutional arguments, the plaintiffs offered several reasons as to why state laws should not apply to the federal au pair program. Their arguments included increased costs to host families, burdensome record-keeping and administrative requirements, and the rational that treating au pairs like regular employees would violate the cultural spirit of the program. In response, court said the plaintiffs did not provide enough proof to substantiate these arguments.


Though lengthy, this decision provides a unique analysis of the relationship between state and federal laws. Further, it illustrates that state and federal laws can regulate the same activities without being in direct conflict. Though the Massachusetts Attorney General can enjoy this victory, the constitutional debate may not be over. Though the First Circuit ruled the federal regulations did not preempt Massachusetts law, Cultural Care can appeal its case to the U.S. Supreme Court to decide this issue.


Capron c. MA Attorney General


1st Circuit says au pair regulations don't preempt Mass. wage law

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