Y’all need to speak English.

Plus, under the logic that they are subject to FLSA without deductions, the au pair would also need to pay tax on any transportation subsidy for non-work use, the education subsidy, room and board, etc.

Anonymous wrote:

Anonymous wrote:Au pairs are required to sign arbitration agreements currently. No attorney is going to take individual arbitration cases. There is no binding precedent that the au pair contracts or stipends violate FLSA. Or that HF should pay overtime, state minimum wages, etc.

If the au pair doesn’t sign an arbitration agreement with the host family then they likely would not be forced to arbitrate claims again the host family. Even if they did, the fee shifting of the wage statutes apply and the au pair’s attorneys fees are part of their claim. Some stated have long statutes of limitation. NY is six years. There may not be biding precedent saying FLsA applies but there are plenty of arguments that the APs in the class action made (and that the Judge in that case bought). If you are in the dispute (whether lawsuit or arb) having to argue whether wage laws apply, you are already losing by having to pay to defend the claim.

Errmmm. Nope! All au pair contacts have arbitration agreements. And argue whether conduct implicates a given statute does not mean you are already losing, it’s pretty much the basis for the legal process.

Anonymous wrote:Au pairs are required to sign arbitration agreements currently. No attorney is going to take individual arbitration cases. There is no binding precedent that the au pair contracts or stipends violate FLSA. Or that HF should pay overtime, state minimum wages, etc.

If the au pair doesn’t sign an arbitration agreement with the host family then they likely would not be forced to arbitrate claims again the host family. Even if they did, the fee shifting of the wage statutes apply and the au pair’s attorneys fees are part of their claim. Some stated have long statutes of limitation. NY is six years. There may not be biding precedent saying FLsA applies but there are plenty of arguments that the APs in the class action made (and that the Judge in that case bought). If you are in the dispute (whether lawsuit or arb) having to argue whether wage laws apply, you are already losing by having to pay to defend the claim.

Au pairs are required to sign arbitration agreements currently. No attorney is going to take individual arbitration cases. There is no binding precedent that the au pair contracts or stipends violate FLSA. Or that HF should pay overtime, state minimum wages, etc.

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:IMO, this made things less clear and exposed host families to more liability. Since it isn't clear what can be deducted, or in what ways APs are like employees and in what ways they aren't, those issues will like be resolved in litigation against host families.

I am a HM and attorney who practices in this area of law. I am not giving legal advice but my understand is that This is correct. As I read it, What the negotiated language does is remove the agencies from claims that they are wrongfully advising host families about what the appropriate pay is. Among the arguments made by the APs in the lawsuit: that they were entitled to minimum wage under stare and federal law (and that federal regulations do not allow deductions for room and board when the employees are required to live in the residence). The judge in the class action had, in several rulings, sided with the APs on these issues but this settlement ended the case w/o a trial.

Theoretically APs are free to sue HFS claiming underpayment it wages if they are making less than minimum wage. Whether this is likely or not is another question of course. But it is accurate to say that there is at least some risk of liability in paying less than minimum wage.

Right, but realistically, especially with our friends on the Supreme Court's recent ruling on the Federal Arbitration Act which essentially means that all groups of employees can be compelled to individual arbitration. Attorneys are not going to take on au pair individual arbitration claims. Au pairs are not going to sue host families individually - again, no one is going to take their case. Without the specter of a large class action, there is no cudgel. The agencies are surely lobbying for a legislative fix or exemption.

Arbitration is only required if you sign an arbitration agreement. Not generally. Flsa and state wage laws state that if the plaintiff wins the defendant pays the plaintiffs attorneys fees. Damages are liquidated - which means whatever pay is owed is doubled. It is not necessarily nominal at all.

Anonymous wrote:

Anonymous wrote:IMO, this made things less clear and exposed host families to more liability. Since it isn't clear what can be deducted, or in what ways APs are like employees and in what ways they aren't, those issues will like be resolved in litigation against host families.

I am a HM and attorney who practices in this area of law. I am not giving legal advice but my understand is that This is correct. As I read it, What the negotiated language does is remove the agencies from claims that they are wrongfully advising host families about what the appropriate pay is. Among the arguments made by the APs in the lawsuit: that they were entitled to minimum wage under stare and federal law (and that federal regulations do not allow deductions for room and board when the employees are required to live in the residence). The judge in the class action had, in several rulings, sided with the APs on these issues but this settlement ended the case w/o a trial.

Theoretically APs are free to sue HFS claiming underpayment it wages if they are making less than minimum wage. Whether this is likely or not is another question of course. But it is accurate to say that there is at least some risk of liability in paying less than minimum wage.

Right, but realistically, especially with our friends on the Supreme Court's recent ruling on the Federal Arbitration Act which essentially means that all groups of employees can be compelled to individual arbitration. Attorneys are not going to take on au pair individual arbitration claims. Au pairs are not going to sue host families individually - again, no one is going to take their case. Without the specter of a large class action, there is no cudgel. The agencies are surely lobbying for a legislative fix or exemption.

Anonymous wrote:IMO, this made things less clear and exposed host families to more liability. Since it isn't clear what can be deducted, or in what ways APs are like employees and in what ways they aren't, those issues will like be resolved in litigation against host families.

I am a HM and attorney who practices in this area of law. I am not giving legal advice but my understand is that This is correct. As I read it, What the negotiated language does is remove the agencies from claims that they are wrongfully advising host families about what the appropriate pay is. Among the arguments made by the APs in the lawsuit: that they were entitled to minimum wage under stare and federal law (and that federal regulations do not allow deductions for room and board when the employees are required to live in the residence). The judge in the class action had, in several rulings, sided with the APs on these issues but this settlement ended the case w/o a trial.

Theoretically APs are free to sue HFS claiming underpayment it wages if they are making less than minimum wage. Whether this is likely or not is another question of course. But it is accurate to say that there is at least some risk of liability in paying less than minimum wage.

Anonymous wrote:IMO, this made things less clear and exposed host families to more liability. Since it isn't clear what can be deducted, or in what ways APs are like employees and in what ways they aren't, those issues will like be resolved in litigation against host families.

Unlikely, HFs are not the deep pockets.

IMO, this made things less clear and exposed host families to more liability. Since it isn't clear what can be deducted, or in what ways APs are like employees and in what ways they aren't, those issues will like be resolved in litigation against host families.

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Actually, the issue of whether MA law requires paying minimum wage to au pairs is still pending before the courts, so we don’t really know that yet. The State Department guidelines are pretty clear that the stipend is determined by looking at the FLSA provisions and deducting out room and board. Au pairs are not considered employees, if they were they would be taxed for personal car use, phone plan, etc.

This is correct. There is a pending case in the U.S. Court of Appeals for the First Circuit about whether the State Department regulations preempt the Massachusetts minimum wage laws. The State Department filed an amicus brief at the invitation of the court and argued that the state laws are preempted.

The IRS also makes explicit that host families don't need to generate W-2s or withhold taxes for their au pairs. They are different from regular employees.

Right, but in the meantime, the agencies are advising (as quoted above) both what the federally-set stipend is and that HFs should adhere to local min wage laws.

No. Not true for APIA, anyway.

See the exact quotes from the Apia website, above.

I did and you are misreading it: nothing in the settlement stands for the proposition that APIA has agreed that room and board cannot be deducted, that overtime rules apply, or that state minimums apply - and they are not not people to pay more than the stipend - they are telling families and au pairs that they can pay more, not that they are required to. There is no binding court precedent on these issues:


Here’s what we were told:

We are pleased to confirm that the U.S. District Court granted its final approval of the settlement agreement for the federal class action suit in Denver, (Beltran et al. v. InterExchange et al.). The court’s order fully resolves and concludes the class action.

Under the terms of the final agreement, Sponsors must prospectively state in their program materials that host families and au pairs are free to agree to compensation higher than the legally applicable minimum.

This provision of the agreement is consistent with our Program’s past practice. Au Pair in America has regularly and consistently communicated that the weekly stipend of $195.75 ($146.81 for EduCare), as specified in Department of State documents, is a minimum. We also previously informed host families that, after discussion and consideration of mutual needs, a higher stipend and/or other benefits may be provided to the au pair.*

We have revised our communications to expressly contain the required provision and to make it very transparent that the au pair and host family may negotiate higher stipend levels, but may not increase the number of hours the au pair may engage in childcare assistance.

More than a third of the settlement’s financial proceeds will go to the attorneys who represented the plaintiffs. As specified in the settlement terms, a claims administrator also will distribute some pro rata compensation to au pairs who opted in to the class action. After these disbursements and distributions, any remaining balance from the settlement’s financial proceeds will be used to provide au pairs with scholarships through a fund managed by the Institute For International Education (IIE).

Please remember that the settlement agreement is not an admission of wrongdoing, is not an admission of the violation of any law, and is not an indication of doubt in any of the defenses to the legal claims asserted in the class action. We and the other Sponsors entered into the agreement solely to eliminate the expense, inconvenience, uncertainty, and distraction of further litigation. The resolution also facilitates peace of mind and enables greater certainty in our future communications about the Program.

We are grateful that the federal class action in Denver has been resolved successfully.

We trust this will provide clarity for you. Au Pair in America remains committed to serving as sponsor for the Department of State’s au pair program, welcoming young adults from around the world and host families across the United States who value this cultural exchange live-in child care assistance program.

We thank you for being your program of choice.

Sincerely,

Ruth Ferry
Senior Vice President & Director

*Note: While a higher weekly stipend is negotiable between the host family and au pair, other Program elements are non-negotiable. These include the maximum number of hours of child care assistance—10 hours per day and 45 hours in any one week (30 hours for EduCare)—and the scope of activities with which the au pair may assist the host family. Refer to 22CFR62.31 for full au pair regulations.


www.aupairinamerica.com

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Actually, the issue of whether MA law requires paying minimum wage to au pairs is still pending before the courts, so we don’t really know that yet. The State Department guidelines are pretty clear that the stipend is determined by looking at the FLSA provisions and deducting out room and board. Au pairs are not considered employees, if they were they would be taxed for personal car use, phone plan, etc.

This is correct. There is a pending case in the U.S. Court of Appeals for the First Circuit about whether the State Department regulations preempt the Massachusetts minimum wage laws. The State Department filed an amicus brief at the invitation of the court and argued that the state laws are preempted.

The IRS also makes explicit that host families don't need to generate W-2s or withhold taxes for their au pairs. They are different from regular employees.

Right, but in the meantime, the agencies are advising (as quoted above) both what the federally-set stipend is and that HFs should adhere to local min wage laws.

No. Not true for APIA, anyway.

See the exact quotes from the Apia website, above.

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Actually, the issue of whether MA law requires paying minimum wage to au pairs is still pending before the courts, so we don’t really know that yet. The State Department guidelines are pretty clear that the stipend is determined by looking at the FLSA provisions and deducting out room and board. Au pairs are not considered employees, if they were they would be taxed for personal car use, phone plan, etc.

This is correct. There is a pending case in the U.S. Court of Appeals for the First Circuit about whether the State Department regulations preempt the Massachusetts minimum wage laws. The State Department filed an amicus brief at the invitation of the court and argued that the state laws are preempted.

The IRS also makes explicit that host families don't need to generate W-2s or withhold taxes for their au pairs. They are different from regular employees.

Right, but in the meantime, the agencies are advising (as quoted above) both what the federally-set stipend is and that HFs should adhere to local min wage laws.

No. Not true for APIA, anyway.

Anonymous wrote:

Anonymous wrote:Actually, the issue of whether MA law requires paying minimum wage to au pairs is still pending before the courts, so we don’t really know that yet. The State Department guidelines are pretty clear that the stipend is determined by looking at the FLSA provisions and deducting out room and board. Au pairs are not considered employees, if they were they would be taxed for personal car use, phone plan, etc.

This is correct. There is a pending case in the U.S. Court of Appeals for the First Circuit about whether the State Department regulations preempt the Massachusetts minimum wage laws. The State Department filed an amicus brief at the invitation of the court and argued that the state laws are preempted.

The IRS also makes explicit that host families don't need to generate W-2s or withhold taxes for their au pairs. They are different from regular employees.

Right, but in the meantime, the agencies are advising (as quoted above) both what the federally-set stipend is and that HFs should adhere to local min wage laws.

Would this have any impact on HFs trying to renew clearance in a Fed job?