Long Hours, Low Wages and Lawsuits Plague the Federal Au Pair Program

Maria remembers the poster. It was pink and shiny and promised a world of adventure. THE BEST YEAR OF YOUR LIFE, it said.

The poster was an ad for Cultural Care Au Pair, one of several private “sponsor” agencies that place young people from around the world — primarily women between the ages of 18 and 26 — with American families interested in hosting them for a year and employing them as live-in nannies. Officially, the au pair program is under the auspices of the U.S. State Department, which issues short-term visas to foreign nationals for what it describes as “an educational and cultural exchange program with a strong child care component.” But the day-to-day operation of the program lies mostly with the private companies, which screen applicants, match host families with au pairs, collect fees from both, and are supposed to intervene to resolve any problems.

Maria saw the poster on a bulletin board in Mexico, while she was finishing her university studies in international trade. (Maria is a pseudonym; she asked that her real name not be published.) She was 24 years old and wondering what to do next. The idea of spending a year living and traveling in the United States — the best year of your life — appealed to her. “I thought, ‘Maybe I should take a break before I go to work,’” she recalls. “‘I can go there and practice my English.’”

She contacted Cultural Care and was soon answering a battery of questions about her English skills and her medical history. By the time she’d obtained all the necessary documents, paid the application fee and arranged her airfare, she’d invested close to $3,000 of her own money in the venture. She flew to New York, where she went to “a kind of school” with other au pairs for a few days of training in child care. The company provided her lodging and meals, but she received no pay for the training period. Then she was put on a bus to Boston, to the family that was awaiting her: a busy couple and their two boys, ages three and eight.

Maria thought she knew what to expect; she and the mother had discussed her duties and her schedule beforehand. The program regulations state that au pairs can provide up to ten hours a day and a maximum of 45 hours a week of child care, with at least 1.5 days off per week, a complete weekend off every month, and two weeks of paid vacation. Maria’s contract specified that she would be paid $195.75 a week for her work. But she had also expected some kind of cultural exchange, possibly sitting around with her hosts “and talking to each other about everything, more like a family thing,” she says.

“This was a job. A really badly paid job, with the worst experiences of my life.”

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The arrangement turned out to be a lot more businesslike than she’d imagined. The family provided her with a third-floor room with its own refrigerator and a separate entrance. Yet the fridge was mostly empty; her hosts were supposed to supply meals, but Maria soon found her food choices were greatly restricted. Entire shelves of the family refrigerator were off limits. If she helped herself to an egg from the kitchen, she was told, “Eggs are really expensive.” If she went looking for a snack, she was told she was getting fat.

“I had three bad meals a day,” she says. “It was kind of offensive. I didn’t feel like part of the family at all.”
Her duties were more expansive than she’d expected, too. Taking care of the kids also meant picking up after them, and soon that came to mean cleaning the entire house.

There were battles over her efforts to work out at a local gym, which required her to borrow the car. There were misunderstandings with the mother over Maria’s still-evolving language skills and over the lovestruck three-year-old calling the au pair “Mommy.”

After four months, the mother called Cultural Care and told them things weren’t working out; perhaps Maria could be “rematched” to another family and they could find a replacement. “She waited until I was on vacation to tell them she didn’t want me here,” Maria says. “I had already spent all the savings I had.”

Over the next several months, Maria was placed with two other families. At her next assignment, she says, she was verbally abused, treated like an indentured servant and threatened with assault — a situation that had her begging her contact at the agency for her immediate removal. At the one after that, the people were kinder but overwhelmed; she ended up taking on duties well beyond her job description and working late into the night. The dreams she’d had about traveling around the country and engaging in “cultural exchange” never materialized.

“This was a job,” she says. “It was totally a job. A really badly paid job, with the worst experiences of my life.”

Promoters of the au pair program, including the sponsor agencies, say that it has generated many positive experiences for participants over the past thirty years, as well as providing affordable child care for middle-class families. Annual surveys conducted by the agencies indicate a high level of satisfaction with the program among au pairs and host families alike. But advocacy groups for domestic workers say that those surveys don’t reflect the 25 percent failure rate of the program; although more than 12,000 au pairs successfully completed the program in 2016, another 4,147 left for various reasons. The advocates also maintain that many au pairs are afraid to complain about the conditions they face out of fear of losing their jobs and being forced to leave the country. Typically, an au pair who loses her position has two weeks to find a rematch with another host family before her visa is invalidated and she has to fly home, often at her own expense.

“It’s a very outdated program,” says Monique Tu Nguyen, executive director of the Matahari Women Workers’ Center in Boston. “A lot of these people work more than forty hours a week for sub-minimum wages. There isn’t any time for a true cultural exchange, and the au pairs are encouraged to keep silent about it.”

But over the past four years, Maria and others like her have found a voice in a federal courtroom in Denver, thanks to a lawsuit brought by the local advocacy group Towards Justice on behalf of au pairs across the country. The case accuses fifteen sponsor agencies, which control almost all of the au pair placements, of conspiring to fix the standard wages of au pairs at $195 a week and discouraging host families from paying them any more. That works out to $4.35 an hour — well below federal and state minimum-wage requirements.

While the au pair program was conceived “with the best of intentions,” the complaint states, it has been “co-opted by an illegal cartel of approved ‘sponsors’ that set wage rates for the industry far below the market rate for non-immigrant professionals in the same industry.” That low rate, the lawsuit alleges, allows the agencies to collect sizable fees from eager host families, ranging from $7,000 to $8,700, as well as sometimes hefty application fees from the au pairs for the privilege of being exploited.

“It’s easy to exploit them, because they don’t have a lot of protection.”

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The agencies have responded to the lawsuit by arguing that the au pair program isn’t primarily a job, but a cultural exchange experience. Annual reports compiled by the State Department list numerous cultural activities offered by sponsors and others in which some au pairs participate, from tours of state capitols to volunteer work to trips to Disneyland. But the au pair advocates contend that the cultural component is a smokescreen for what is essentially a cheap immigrant-labor bazaar, one that the federal government continues to foster despite the Trump administration’s scrutiny of other work-visa programs.

“The need for affordable child care is real in America,” notes Nina DiSalvo, the executive director of Towards Justice. “But that’s no excuse for the government to cloak a program for low-wage nannies as a cultural exchange.”

Although the lawsuit lists only a handful of named plaintiffs, it’s been certified as a class action — meaning that its outcome could have an impact on up to 90,000 au pairs who have worked in this country over the past few years, with potential damages stretching into hundreds of millions of dollars. The case has been fiercely opposed by the placement agencies, but it’s survived motions for summary judgment and now appears headed for trial in a few months.

DiSalvo hopes the case can shine a light not only on the wage inequities, but also on the way that the au pair program currently operates.

“The State Department has relied almost exclusively on self-reporting by the sponsors as a way to oversee the program,” she says. “I’ve heard many, many anecdotal stories from au pairs and their advocates about the challenges in the home. Things can range from the seemingly petty to the quite horrific. These are young people from another country. They don’t know much about their rights or who to complain to. They’re isolated. When you think about a young woman who has no support network, no connections, no transportation in suburban America — it might be a wonderful family, but there can be issues, and it can be tough to get out.”

America has been importing child-care workers for more than a century, yet the effort to formalize a government-sanctioned au pair program dates back only to 1986. The program was started by the United States Information Agency, the now-defunct federal public-relations machine, as a means of touting American values to foreign visitors. Modeled after the European concept of the mother’s helper, it initially offered room and board and a hundred bucks a week for child-care services, with designated private sponsors making the arrangements. At the outset, the program wasn’t subject to any labor-law protections, the idea being that the au pairs were not really workers, but visitors, here to soak up the American way of life.

Even the name of the program reflected that thinking. “‘Au pair’ is French for ‘on par,’” explains one State Department brochure, “reminding host families that, although an employee, their international visitor is to be treated like a member of the family.”

Almost from the beginning, though, there were nettlesome questions about whether the au pair “exchange” was a work program in disguise. A 1990 General Accounting Office report on the program, in response to congressional inquiries, concluded that au pairs were actually engaged in full-time child-care work, jeopardizing the “integrity” of the J-1 visa, which was intended for cultural and educational exchange opportunities. The same issues were still being raised decades later, in a 2012 report by the State Department’s Office of the Inspector General, which questioned “the appropriateness of using J visas in work programs such as alien physician, teacher, au pair, intern and trainee.”

The rise of a few placement agencies that dominated the business posed other concerns. Applicants couldn’t get a visa without going through a sponsoring agency, but there was little variation among the agencies with regard to the fees they charged or the wages they advertised as “standard” for au pairs. Testifying before Congress in 1995, USIA director Joseph Duffey lamented that the agencies “have a cartel, really.” (The Alliance for International Exchange, a trade group that counts among its members twelve of the sixteen sponsoring agencies and calls itself “the collective public policy voice for the exchange community,” declined Westword’s requests for comment on the wage dispute and related matters.)

Over the years, the government has sought to retool the program, with modest success. Oversight was moved from the USIA to the State Department’s Bureau of Educational and Cultural Affairs. The vague educational requirement was made more explicit: Au pairs are expected to take at least six semester hours of college credit during their year of service, with host families chipping in $500 toward the cost. The agencies are required to report complaints about the program from au pairs and families and undergo audits. But perhaps the most significant change has been a series of statements from the Department of Labor, dating back to the mid-1990s, indicating that au pairs need to be paid in conformance with the provisions of the Fair Labor Standards Act, the 1938 law that establishes an employee’s right to be paid the established minimum wage.

The current federal minimum wage is $7.25 an hour. (It hasn’t changed since 2009.) Many states have set a higher prevailing minimum wage; Colorado, for example, now requires employers to pay at least $10.20 an hour, which will increase to $11.10 an hour next year and $12 an hour in 2020. But the sponsoring agencies have interpreted the FLSA rules for au pairs as requiring payment of only $4.35 an hour; they count the room and board provided as a 40 percent credit that offsets the difference between the au pair “stipend” and the bare-minimum federal wage.

The attorneys for the au pairs insist that’s plain wrong; they point to Department of Labor opinion letters that disallow such credits for employers of au pairs. They also contend that the program isn’t exempt from state minimum-wage requirements, either. “The regulations specifically say they are entitled to the minimum wage,” DiSalvo notes. “The regulations make it very clear, and no other documents the defendants have pointed to can dispute that.”

“This case hits at the heart of the business model of the defendants.”

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Yet on their websites, sponsor agencies continue to assure host families that they are only required to pay $195 a week for their au pairs; families have even been told that they can’t pay more. After Massachusetts passed a law in 2014, clarifying that the state’s minimum wage and other protections extended to domestic workers, Cambridge-based Cultural Care Au Pair went to court to seek to exclude au pairs from the requirements. The lawsuit was dismissed but has been appealed; in the meantime, says Matahari’s Nguyen, none of the agencies appear to be in compliance with the Massachusetts minimum wage, which is $11 an hour.

“There’s been a lot of resistance from the companies that benefited from this so much over the years and made millions of dollars — off the workers as well as the families,” Nguyen observes. “They have a lot of money and resources, and they’ve been really aggressive.”

The government overseers of the program have been reluctant to get involved in the wage dispute. State Department officials have resisted efforts to depose them in the class action lawsuit and have generally avoided making public statements on the issue. Department spokesman Nathan Arnold declines to comment on the lawsuit but maintains that the government has several ways to provide oversight of the way the program operates, from a 24-hour hotline to “monitoring trips” to meet with au pairs in selected cities, to the agencies’ reporting requirements.

“The State Department takes very seriously every complaint and incident that is reported to us,” Arnold says. But many of the complaints involve minor issues, he adds, such as lost luggage or personality conflicts, “that do not require State Department intervention.”

The government’s annual reports on the au pair program dutifully note the generally positive survey results of au pairs and families but don’t give any information about the sample size — or how many of those surveys, if any, were filled out by au pairs who failed to complete the program. Arnold acknowledges that his agency doesn’t have data on response rates and thus doesn’t claim that the results are “representative of the au pair population.”

A 2017 report on human trafficking makes passing mention of media accounts concerning “a small number of cases...involving au pairs working extra hours without additional pay and not receiving the appropriate wage for their placement jurisdiction.” Yet the available data suggests that the problems involving too many hours and not enough pay aren’t confined to just a small number of cases. More than 3,200 complaints were fielded by the sponsoring agencies in 2016, lodged by au pairs or their hosts or both. Some had to do with incompatibility issues, homesickness, or poor language or driving skills, but others involved work hours or duties.

The State Department’s hotline calls also reflect concerns about pay and conditions; although the redacted summaries of the calls appear online only years after the fact, a couple of typical calls from 2013 hint at the kind of financial distress some au pairs face.

One caller had done her own research and concluded that she had the right to earn a minimum of $7.25 an hour: “The caller says when she spoke to her [sponsor agency] Local Coordinator and asked her why her pay is so low...her sponsor told her the information was wrong and that she knew her pay was going to be that low and that nothing can be done.”

Another caller claimed that she was being compelled to work a minimum of fifty hours a week: “The host mother constantly berates, belittles and threatens her with being deportation [sic] if she does [not] do what the host mother instructs her to do. The host mother informed [name deleted] that she could not leave the host residence until she pays back & works off the money that they paid for her college tuition. … She informed the local coordinator…and was told that there is nothing that Au Pair Care Inc. can do because she signed a contract. … She wants to leave the host residence today but does not want to be deported or arrested for not paying the host family back the money that they paid for her college tuition.”

“We follow up on all concerns reported to the hotline,” Arnold says. He declines to comment on what he calls “specific corrective actions.” Last year, Politico reported that no sponsor agency has been sanctioned for any violations of the program regulations since 2006.

A 2013 article by American University law professor Janie Chuang, one of the first to probe the “cultural exchange” myths of the au pair program, concluded that au pairs are in some ways worse off than other types of migrant domestic workers, largely hidden from scrutiny because they’re not perceived as workers at all. That invisibility can encourage economic exploitation and worse. Several years ago, four former au pairs became sex-trafficking victims of a violent pimp in Chicago, a case that led a federal judge to blast the women’s sponsoring agency, Au Pair in America, because it “basically cut them loose.”

Such cases appear to be rare. A more pertinent question in the class action lawsuit is how many au pairs have experiences similar to those of Johana Beltran. A native of Colombia, Beltran applied to become an au pair through a sponsor company called InterExchange. She paid the company’s representative in Bogotá approximately $2,500 in fees and expenses. For several months she interviewed with prospective host families by Skype and phone, hitting it off with a couple in Highlands Ranch who have two children.

After obtaining her J-1 visa, Beltran flew to New York for training, then to Denver. She was provided a room in the family’s basement and went to work — not only taking care of the kids, but performing a wide range of household duties that went far beyond traditional au pair tasks. She cooked, cleaned and did laundry for the entire family, washed the mother’s car on a daily basis, gardened and tended eight chickens. Despite the rules about time off, she worked six and sometimes seven days a week. Her pay remained the same, regardless of how many hours she worked: $195 a week.

Although she prepared dinner for the family every night, Beltran was not allowed to eat with them. She subsisted on leftovers much of the time, she reports, and at one point had leftover pizza for dinner several days in a row because the parents failed to buy other food for her.

InterExchange hosted meetings for au pairs and families several times a month; Beltran only attended one because, she claims, the family wouldn’t take her to others. No one from the company ever visited the house to see how things were going. (The program’s 2015 and 2016 annual reports both note “multiple” cases in which sponsor agencies either didn’t conduct mandated home visits or didn’t report them, but it isn’t clear how frequently this happens.) After roughly three months, an exhausted Beltran told her host family that she wanted to leave. At that point, an InterExchange coordinator did come to the house, she says, and had her sign something that she didn’t understand.

After vacating the premises, Beltran contacted the attorneys at Towards Justice and told them her story. She is now the lead plaintiff in the class action lawsuit, championing the rights of 90,000 au pairs.

Working two jobs while raising a family in Centennial, Janet has come to appreciate what the au pair program has to offer to host families. “We have four children,” she says. “Having a live-in au pair, at the price we pay, is a very cost-effective way to have child care.”

Janet and her husband have employed four au pairs in the past five years — two from Mexico, one from Brazil, one from South Africa. (Janet, like Maria, is a pseudonym; she asked to remain anonymous in order to protect her family’s privacy.) Each one had her own reasons for becoming an au pair, she says, “from escaping poverty to getting away from controlling parents.”

Most of her au pairs have been rematches. She and her husband prefer it that way, she says, because the women are already in the country, have some experience, and “can be at our house in a week or less.” While some rematches may raise red flags, she’s found that in many cases the problems in the previous situation weren’t the au pair’s fault. She’s heard of families demanding more from their au pairs than the program calls for and treating them shabbily. Some families readily pay the au pairs extra for overtime without letting the agencies know about it; some are conscientious about not expecting too much; others simply take advantage.

“You get these girls who are young, the language is second for them, and they’re being told what to do,” Janet observes. “It’s easy to exploit them, because they don’t have a lot of protection. I’m constantly telling them that you have to use your voice, you have to stand up for yourself.”

Experience has taught Janet to approach the selection of an agency and an au pair with considerable caution. She’s convinced that the local representatives in some countries don’t do a good enough job of screening applicants, possibly because of corruption or kickbacks. And while the agencies may seem interchangeable, advertising the same services and identical wages, actual performance can vary dramatically.

The first agency she used seemed mainly interested in collecting its fees. It took a near-collision in heavy traffic for Janet to discover that one au pair, whom the agency had represented as a good driver, shouldn’t be behind the wheel. (She also soon learned the woman had an eating disorder and memory issues, problems the agency may not have known about.) The agency she now uses, Au Pair Care, has a much more involved local coordinator, she says, who’s been helpful in following up and resolving issues.

“The agencies are very similar,” Janet says. “The local counselor really makes or breaks the experience. If they’re not involved or motivated, it can be a problem.”

Many of the conflicts that occur between host families and their au pairs could be avoided through better communication and agency involvement, Janet suggests. It helps if the au pair feels comfortable enough from the start to air her concerns. “Our last au pair, all she wanted to do was interview my husband,” she says. “She said, ‘There are way too many stories about creepy host dads sneaking into our rooms.’”

Yet even the most confident, proactive au pairs are at the mercy of their host families’ good intentions — or whims. A staggering 85 percent of the complaints fielded by the sponsor agencies in the past two years were resolved by terminating or rematching the au pair. Tellingly, the host family was “fired” in barely one out of twenty cases.

“I was there to help, not to be like a maid. She told me, ‘I paid for you, so you need to do what I say.’”

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Those numbers are consistent with the individual stories of au pairs involved in the Beltran lawsuit. One of the named plaintiffs, Alexandra Ivette González, got into an argument with her host mother about what she considered an unreasonable curfew after six months on the job. The next morning she was ordered out of the house. Her sponsoring agency offered to try to rematch her but declined to provide food or a place to stay. No rematch was forthcoming. After staying with friends for a few weeks, she had to borrow money to fly back to Colombia.

Another named plaintiff, Beaudette Deetlefs, found herself having to dig into her paltry savings for food on several occasions when her host family went on vacation, leaving her at their house with an empty refrigerator. She spent her own vacation in her room in the basement because she couldn’t afford to go anywhere. No Disneyland, no glass slipper, no prince.

Maria laughs bitterly when asked about her vacations. “Vacation was taking a bus or a train to visit another au pair,” she says. “It was not really enjoyable.”

After her four-month stay with the family in Boston that zealously guarded its refrigerator, Maria was rematched with an African-American family in Maryland. She lasted one month there. Although there was only one girl, a nine-year-old, to take care of, she says she clashed repeatedly with the mother; among other issues, the woman didn’t like how Maria styled the child’s hair, complaining that “fucking white bitches” didn’t know how to do her daughter’s hair. Growing up in Mexico, Maria had never heard herself referred to as a white bitch before.

“She wanted me to do everything she said,” Maria says. “Helping her return a rental car, taking care of the dog, cleaning the large house, special treatments for the hardwood floors, rubbing her girl’s feet. I was there to help, not to be like a maid. One day I told her the dog is not my responsibility. She told me, ‘I paid for you, so you need to do what I say.’

“I told her, ‘You didn’t pay for me to be your slave.’”

The situation blew up one night when Maria came home five minutes after her curfew. She was talking on the phone with her mother. The woman started screaming at her to put down the phone, she says: “She wanted to hit me, but the husband grabbed her. She was really agitated. I was scared.”

Maria called her local coordinator. She believes the agency deliberately didn’t return her calls for several days. “They didn’t want me to leave,” she says. “They made it really hard for me. They told me I had to stay two more weeks.”

It took more than two weeks to find another placement. Her next assignment was in Virginia — three children and a woman going through a divorce. The husband had run off with the previous au pair.

“It was a really hard situation,” Maria recalls. “Everybody was depressed, and they were selling the house. She was really respectful and treated me well, but it was a lot of work. If I didn’t cook, she didn’t eat. I ended up cooking for the whole family and taking care of her, too.”

Maria also took care of the garden and the laundry and the housework. She helped the family move twice, packing eighty boxes and helping to transport them. The mother asked her to extend her visa for another year, promising to pay her more money and offer more generous vacations. Maria used some of her extended stay to pursue her schooling, but the extra pay and vacation time proved largely elusive.

She didn’t want to complain. She had learned that complaining only made things worse, and there was a great deal of pressure from the agency not to change families again. Not that the agency was going out of its way to check on her.

“They didn’t care,” she says. “With the exception of the coordinator in Boston, who really did help, I got the impression they were only interested in money.”

Since the class action lawsuit was first filed in Denver’s federal court four years ago, Towards Justice has been joined as co-counsel for the au pairs by attorneys from Boies Schiller Flexner, a large, high-profile litigation firm with offices across the country. The fifteen sponsor agencies named as defendants, which range from big companies with tens of millions in assets to small independents, each have their own lawyers, making for some crowded hearings.

The process has been costly and contentious — so much so that U.S. District Judge Christine Arguello scolded both sides at a hearing last year. “This case, I am afraid, has spun out of control because of what appears to me to be a deep antipathy among counsel in this suit,” she said. “It is not an exaggeration to say that out of my more than 200 civil matters, you are my most dysfunctional case. Frankly, there is not another case that comes even close.”

A flash point has been the depositions of the au pairs, some of whom have expressed concerns about possible retaliation from the agencies. One 25-year-old au pair from Colombia failed to appear at her deposition in Philadelphia. She later filed an affidavit explaining that she’d gotten as far as the office-building entrance but then became “overwhelmed by fear.”

“During my time as an au pair, Cultural Care treated me like a product to be sold, not a human being,” she declared. “They dominated and intimidated me, exercising control over virtually all aspects of my life. Preparing for my deposition brought all of those old feelings rushing back. ... I have reluctantly concluded that the emotional toll is simply too great for me to continue.”

The attorneys for the agencies sought close to $80,000 in fees and expenses from the woman (who was removed as a plaintiff) and her lawyers for the canceled deposition; Judge Arguello awarded them $19,807. Au pair attorney Lauren Louis subsequently filed an affidavit herself, complaining that the sponsor companies and their attorneys were harassing her clients, pressuring host families to turn against au pairs who joined the lawsuit and asking intimidating questions at depositions about their clients’ romantic relationships, immigration status and what they did in their free time.

Other battles have been waged over access to the sponsoring companies’ financial data and other internal information. The plaintiffs have sought $67,000 in fees over one discovery dispute. There’s clearly a great deal at stake for both sides.

“This case hits at the heart of the business model of the defendants,” DiSalvo says. “They simply will not be able to charge the families so much money if au pairs make the minimum wage.”

In June, Judge Arguello declined to grant motions from both sides for summary judgment, concluding that there were sufficient “genuine issues of material fact” to proceed to trial, including the question of whether the sponsor agencies had violated antitrust and racketeering laws. No trial date has been announced.

Maria is 28 years old now, married and working and pursuing her studies in the United States. Her au pair experience is in the past, but hardly forgotten. How can you forget the worst year of your life?

“I don’t understand why this program is going on,” she says, “and why they are allowed to bring people to another country to work as nannies instead of employing their own people. And then they want to pay less. I don’t get it. I don’t think this program should even exist.”