The Abuses of the Au Pair Program Exposed: Warnings of AUWCL Professor Chuang Finally Resonate with Courts

Janie Chuang
 

A highly respected expert in the area of trafficking of persons, AUWCL Professor Janie Chuang recently saw her research reflected in new trends in case law. The U.S. Court of Appeals for the First Circuit recognized in a judgment of December 2, 2019 that the au pair program must adhere to minimum wage standards in force in the state of Massachusetts. In this case, Erin Capron, Jeffrey Penedo, and Cultural Care, Inc., d/b/a Cultural Care Au Pair v. Office of the Attorney General of the Commonwealth of Massachusetts, the court recognized in 2019 what Professor Janie Chuang already demanded in 2013 in a seminal article published in the Harvard Journal of Law & Gender. Her 2013 article was even cited in the complaint for another case, Johana Paola Beltran v. the United States District Court for the District of Colorado. This case led to a $65.5 million settlement in early 2019 for the 100,000 au pairs covered in the class action.

In her article, Professor Chuang argued that the legal categorization of au pairs as “cultural exchange participants” is strategically used to sustain – and disguise – a government-created domestic worker program to provide flexible, in-home childcare for upper-middle-class families at below-market prices. The “cultural exchange” subterfuge has created an underclass of migrant domestic workers conceptually and structurally removed from the application of labor standards and the scrutiny of labor institutions. On the one hand, the “cultural exchange” rubric enables the U.S. government to house the program under the Department of State rather than Labor, and to delegate oversight of this government program to private recruitment agencies that have strong financial incentives to overlook and even hide worker exploitation. On the other hand, the “cultural exchange” rhetoric used in the au pair program regulations and practice reifies harmful class, gender, racial biases and tropes that feed society’s stubborn resistance to valuing domestic work as work worthy of labor protection. Together these dynamics render au pairs vulnerable to abuse, and threaten to undermine the tremendous gains otherwise being made on behalf of domestic workers’ rights. The article concludes with a proposal to reform the au pair program with an eye to promoting decent working conditions for all domestic workers.

The au pair program was established by the U.S. government in 1986 as a two-year pilot program, and since then it has expanded and provided thousands of primarily young women a pathway to legally enter the U.S. In exchange for entering the country, they work hard, sometimes for many hours (up 45 hours per week) and for very meager wages. The most recent wage established for au pairs was $195 per week, plus some housing allowance and other small benefits. The Court of Appeals found that “the regulatory history does suggest that the au pair exchange program regulations were promulgated at a time when it may not have been evident that there were independently enforceable wage and hour protections for domestic workers beyond those established by the FLSA itself” (p. 78 of the Court’s decision in the Erin Capron decision. The Court clarified that state regulations on workers rights now have to be enforced, together and beyond the federal regulations if necessary. The Court demanded that those state regulations be applied, and the compensation for au pairs in Massachusetts be adjusted to minimum wage requirements.

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