Aupair lawsuit for low pay rates against minimum wage laws

[South African 1]

1 hour ago, Californiansunset said:

1 hour ago, Californiansunset said:

What you need to consider as an au pair is that you are being provided and paid for with housing and food. So the $4.25 is only your extra pay but add to that the cost of you having to pay for your own room in your area plus food and you have your actual pay. 

This would be true however, the families require us to live with them therefore they are not allowed to deduct 40% of the pay for "board and food" this was what was brought up by the agency but was thrown out because we are not given the choice or option in where we live, even if it were apart of the reason then we should still get paid by labor law a minimum of $7.25/$7.50, I brought up the option that I would live with my fiancé and was told they could not allow that as they need me early mornings and till bed time and it would inconvenience them which is why they cannot say that its for my benefit, they are they only ones who benefit from it

[Umka36 781]

I'm not sure anyone would use an au pair if you cannot deduct the cost of room and board (isn't it also a requirement that the au pair lives with the host family?). I have a friend who has an au pair and they also had to provide a vehicle usage (including covering the insurance). When I get the chance, I'm going to ask them about their compensation obligation.

Host families are required to:

• Pay up to $500 toward the cost of the au pair’s required academic course work;
• Provide an appropriate suitable private room and three meals a day for the au pair;
• Be U.S. citizens or legal permanent residents fluent in spoken English;
• Pay a weekly minimum stipend based on the program option selected;
• Give the au pair one complete weekend off each month (Friday evening to Monday morning);
• Facilitate the care provider’s requirement to enroll in and attend an accredited post-secondary institution to fulfill her Educational Component requirement;
• Provide a minimum of two weeks paid vacation for each 12 month exchange term (prorated for extension periods of six or nine months), in addition to regular weekly/monthly time off;
• Include the au pair whenever possible in family meals, outings, holidays and other events; and
• Host families and Au Pairs must sign an Agreement detailing the au pair’s obligation to provide child care prior to the Au Pair’s placement in the host family’s home. In the event of questions regarding refunds or other adjustments, host families and au pairs should refer to their agreements. The Department of State does not have jurisdiction over contractual obligations.

 

https://j1visa.state.gov/programs/au-pair#hostsemployers

 

Edited September 13, 2017 by Umka36

[Umka36 781]

Here is some additional information that should apply to the J1 as well:

 

Know Your Rights

All InterExchange Work & Travel USA students are covered by basic minimum wage laws and overtime as it applies from state to state. As of July 24, 2009 the Fair Labor Standards Act (FLSA) minimum wage was set at $7.25 per hour. Where state law requires a higher minimum wage, the higher standard applies. If housing or food is included in a job offer, then the cost of room and board is considered part of the minimum wage. Employers try to keep costs for housing and/or food as low as possible. Paying a student for the season or a set wage for a week is permitted as long as they adhere to minimum wage laws.

 

https://www.interexchange.org/travel-abroad/work-travel-usa/resources/rights/

[South African 1]

14 minutes ago, Umka36 said:

I'm not sure anyone would use an au pair if you cannot deduct the cost of room and board (isn't it also a requirement that the au pair lives with the host family?). I have a friend who has an au pair and they also had to provide a vehicle usage (including covering the insurance). When I get the chance, I'm going to ask them about their compensation obligation.

Host families are required to:

• Pay up to $500 toward the cost of the au pair’s required academic course work;
• Provide an appropriate suitable private room and three meals a day for the au pair;
• Be U.S. citizens or legal permanent residents fluent in spoken English;
• Pay a weekly minimum stipend based on the program option selected;
• Give the au pair one complete weekend off each month (Friday evening to Monday morning);
• Facilitate the care provider’s requirement to enroll in and attend an accredited post-secondary institution to fulfill her Educational Component requirement;
• Provide a minimum of two weeks paid vacation for each 12 month exchange term (prorated for extension periods of six or nine months), in addition to regular weekly/monthly time off;
• Include the au pair whenever possible in family meals, outings, holidays and other events; and
• Host families and Au Pairs must sign an Agreement detailing the au pair’s obligation to provide child care prior to the Au Pair’s placement in the host family’s home. In the event of questions regarding refunds or other adjustments, host families and au pairs should refer to their agreements. The Department of State does not have jurisdiction over contractual obligations.

 

https://j1visa.state.gov/programs/au-pair#hostsemployers

 

It all depends in the agency, as I said the host families and aupairs are not the issue, agencies tell host families one thing then and tell aupairs another, I was one of the unfortunate ones that ended up with a agency that cares more about their bottom line than they do their aupairs, the several complaints I've made I've been told to just smile and work overtime to keep the family happy which is not how it is suppose to be, the promises that were made by both my agency and host family is entirely different once I arrived, I was supposed to have access to a car but that has since changed, I was not supposed to be changing adult diapers or bathing a teenager but once I arrived i was told I would get used to it and to do as I was told, the hours agreed upon were 30hrs a week but once I arrived I work over 45, I'm suppose to have 1.5 days off a week and 1 full weekend off a month but that's isn't always the case I'm forced to drive long distances when they Dont want to and have no say in when I want to take my 2 weeks vacation time, what is promised and what is actually given are two completely different things... And before anyone says that I should just leave it is not that simple and extremely expensive to do just that and i will be given the bad rep regardless of the outcome, its much more difficult than resigning, once I start that process I still have to live with them for 2 weeks which would be uncomfortable and full if tension 

Edited September 13, 2017 by South African

[Umka36 781]

1 minute ago, South African said:

It all depends in the agency, as I said the host families and aupairs are not the issue, agencies tell host families one thing then and tell aupairs another, I was one of the unfortunate ones that ended up with a agency that cares more about their bottom line than they do their aupairs, the several complaints I've made I've been told to just smile and work overtime to keep the family happy which is not how it is suppose to be, the promises that were made by both my agency and host family is entirely different once I arrived, I was supposed to have access to a car but that has since changed, I was not supposed to be changing adult diapers or bathing a teenager but once I arrived i was told I would get used to it and to do as I was told, the hours agreed upon were 30hrs a week but once I arrived I work over 45, I'm suppose to have 1.5 days off a week and 1 full weekend off a month but that's isn't always the case I'm forced to drive long distances when they Dont want to and have no say in when I want to take my 2 weeks vacation time, what is promised and what is actually given are two completely different things... And before anyone says that I should just leave it is not that simple and extremely expensive to do just that and u will be given the bad rep regardless of the outcome, its much more difficult than resigning, once I start that process I still have to live with them for 2 weeks which would be uncomfortable and full if tension 

Then you may have a case, and should seek the advice of a lawyer if there's a breach of contract. I'm curious what your contract states you are to provide/compensated. FWIW, I'm not saying anyone should abuse an au pair especially when it's suppose to be beneficial for both parties.

 

 

[Californiansunset 332]

1 hour ago, South African said:

 

Just something I want you to consider is before you join that lawsuit, just because I fully understand where you are coming from as I was an Au Pair before as well:

First of all, you agreed to this pay BEFORE you joined this family. You didn't have to, it was your choice. If you are not happy with your current pay because it's a lot more work than what you anticipated (and your family mightve said) then ask for a raise. If you lay out the problems and additional work you have with one of the children and ask for a reasonable pay increase, I'm sure the family will be open to some sort of negotiation. If they don't want to pay more, then they might just offer to get another Au Pair who would love to get the chance to come to the US and work for this family in order to improve her English etc. Because in the end. let's be honest, there are way more girls who want to be an Au Pair in the US than there is demand. 

 

By increasing the pay for Au Pairs, all that's mainly going to happen is that people will stop getting J1 Au Pairs from abroad because they will be too expensive and will instead rather look for someone on Au Pair 'black market' pages or even for people within the U.S. The latter will rob people of the chance to live and experience the American culture. Also I know a lot of people who didn't go through an Au Pair agency (especially after the financial crisis in 2009 when I was looking for an Au Pair family in the U.S.) but found their families through other homepages because the agencies are too expensive. These people technically come to the US illegal with a B1/B2 visa and work as an Au Pair.

 

By making the legal way even more expensive than it already is for a family, the demand for foreign Au Pairs will drop significantly. Just something to think of... I also didn't like how little I got paid (not that it matters but I was getting paid less than you are and was working around 50 hours) but I was still considering the rent I was saving as well as the food my salary as well. And if you take as an argument that you offered them to live somewhere else then you are taking away the main part of the Au Pair experience... to live with that American family. This family would be better off getting a 'real' Au Pair then.  

[South African 1]

2 hours ago, Californiansunset said:

Just something I want you to consider is before you join that lawsuit, just because I fully understand where you are coming from as I was an Au Pair before as well:

First of all, you agreed to this pay BEFORE you joined this family. You didn't have to, it was your choice. If you are not happy with your current pay because it's a lot more work than what you anticipated (and your family mightve said) then ask for a raise. If you lay out the problems and additional work you have with one of the children and ask for a reasonable pay increase, I'm sure the family will be open to some sort of negotiation. If they don't want to pay more, then they might just offer to get another Au Pair who would love to get the chance to come to the US and work for this family in order to improve her English etc. Because in the end. let's be honest, there are way more girls who want to be an Au Pair in the US than there is demand. 

 

By increasing the pay for Au Pairs, all that's mainly going to happen is that people will stop getting J1 Au Pairs from abroad because they will be too expensive and will instead rather look for someone on Au Pair 'black market' pages or even for people within the U.S. The latter will rob people of the chance to live and experience the American culture. Also I know a lot of people who didn't go through an Au Pair agency (especially after the financial crisis in 2009 when I was looking for an Au Pair family in the U.S.) but found their families through other homepages because the agencies are too expensive. These people technically come to the US illegal with a B1/B2 visa and work as an Au Pair.

 

By making the legal way even more expensive than it already is for a family, the demand for foreign Au Pairs will drop significantly. Just something to think of... I also didn't like how little I got paid (not that it matters but I was getting paid less than you are and was working around 50 hours) but I was still considering the rent I was saving as well as the food my salary as well. And if you take as an argument that you offered them to live somewhere else then you are taking away the main part of the Au Pair experience... to live with that American family. This family would be better off getting a 'real' Au Pair then.  

I completely understand that which was why I came here to ask advice on it, by the way I pay for my own food so that can be taken out if it. I get what you're saying but I also paid a lot if money to the agency just like the family did and I have held up my end of contract so I would expect them to do the same, I have explained and asked them for a raise on multiple occasions and the outcome remains the same, now let's say I do to them what they are doing to me and decide to do whatever I wanted to do and refused to work more than the original amount of hours or the work that I originally came over here to do, then I would be in the wrong right??? So its okay for them to take advantage of the fact that I am here in their home but not for me to try to put a stop to it? The whole point of this program is to learn their culture and explore with them, something you cannot do if you're working 6 days a week for almost 10 hours a day so again I'll say i Dont blame the family I blame my agency for selling 1 thing to me and another to the family i am with

[Californiansunset 332]

1 hour ago, South African said:

I completely understand that which was why I came here to ask advice on it, by the way I pay for my own food so that can be taken out if it. I get what you're saying but I also paid a lot if money to the agency just like the family did and I have held up my end of contract so I would expect them to do the same, I have explained and asked them for a raise on multiple occasions and the outcome remains the same, now let's say I do to them what they are doing to me and decide to do whatever I wanted to do and refused to work more than the original amount of hours or the work that I originally came over here to do, then I would be in the wrong right??? So its okay for them to take advantage of the fact that I am here in their home but not for me to try to put a stop to it? The whole point of this program is to learn their culture and explore with them, something you cannot do if you're working 6 days a week for almost 10 hours a day so again I'll say i Dont blame the family I blame my agency for selling 1 thing to me and another to the family i am with

Yeah I completely get you, especially because I was in the exact same position... lots of promises but the family didn't keep theirs at all. The agencies are always super shady and just want to get their money, that's not surprising that they won't help you when you are unhappy. I would give them very bad rating all over social media and the internet, that's what I did. Eventually they need to change something if there're enough people complaining about their procedures. 

 

When it comes to the lawsuit, I would really ask myself what I'd be getting out of it or what I am hoping for it's going to improve. As I said, if that lawsuit gets approved, chances are that only very few Au Pairs will actually benefit from it. In the end the families that are getting Au Pairs are the ones that can't afford paying for daycare or an American nanny. Those families just don't have the money. Now if the salary for Au Pairs increases a lot of these families also can't afford having Au Pairs anymore. This lawsuit could jeopardize a lot of foreign girls dream to come to the U.S. as an Au Pair. 

It's up to you... technically your status in the U.S. will be "safe" as soon as you adjust status through the marriage, so it's not like it's going to affect your current status and you will have to go home. At the same time I doubt you would benefit from this lawsuit if you guys win. I don't think they would backpay you for the time you spent there as an Au Pair, it would just change the rules for the Au Pair families after this lawsuit is over (assuming you are starting a proper job after you get your EAD (work permit) through marriage, which could be 3-4 months from now...).

[MaryLu19 10]

4.25/h that's insane. I worked as a nanny  10 years ago and made 15/h . I don't think you'll get anything from the lawsuit, get married, get your GC and move on with a better job.  I get so irritated when people take advantage of other people. 

[Californiansunset 332]

23 minutes ago, MaryLu19 said:

4.25/h that's insane. I worked as a nanny  10 years ago and made 15/h . I don't think you'll get anything from the lawsuit, get married, get your GC and move on with a better job.  I get so irritated when people take advantage of other people. 

Nanny and au pair are very different. I also worked as a nanny for $12 an hour but as an au pair I made a little over $3