First Circuit Holds that Massachusetts Au Pairs are Entitled to Overtime Under Massachusetts Law
Massachusetts and federal laws provide important protections to employees regarding payment of wages and overtime. Those laws, however, frequently differ in important respects. For example, restaurant employees are entitled to overtime under federal law, but not under state law. The state minimum wage in 2019 is $12.00/hour, whereas the federal minimum wage is $7.25/hour. On December 2, 2019, the First Circuit Court of Appeals introduced a new difference regarding the payment of au pairs.
How do Massachusetts and Federal Wage and Hour Laws Apply to Au Pairs?
Au pair programs are “cultural exchange” programs in which foreign individuals obtain a special visa to provide in-home childcare services while pursuing a post-secondary degree. Under federal law, these au pairs are not entitled to overtime and federal law allows their employer to deduct from their wages for room and board up to actual costs of that room and board. Under Massachusetts law, these au pairs are entitled to overtime and the deductions an employer can take from an au pair’s wages are much more limited than under federal law and are not to exceed $35.00 per week.
The Case: Cultural Care, Inc., et al. v. Office of the Attorney General of Commonwealth of Massachusetts, et al.
Cultural Care, Inc., a placement agency for au pairs and two individuals from host families filed suit claiming that the Massachusetts laws were preempted by the federal ones. The First Circuit disagreed, holding that Massachusetts law does apply to Massachusetts au pairs and that according to Massachusetts law, those au pairs must be paid overtime for hours worked over 40 in a workweek. Read the opinion here.
ARE AU PAIRS ENTITLED TO OVERTIME UNDER MASSACHUSETTS LAW?
Yes. On December 2, 2019, the First Circuit Court of Appeals held that Massachusetts law requires au pairs to be paid overtime for all hours worked over 40 in a workweek and held that federal law does not preempt Massachusetts law in this regard.
ARE AU PAIRS ENTITLED TO MINIMUM WAGE UNDER MASSACHUSETTS LAW?
Yes. Under both Massachusetts and federal law, au pairs are entitled to minimum wage for all hours worked.
What Counts as Hours Worked for Calculating Minimum Wage and Overtime for Au Pairs?
According to Massachusetts law, “working time” includes all time that the au pair is required to be on the employer’s premises or to be on duty, including meal periods, rest periods, and sleep periods. All time that an au pair is required to be on premises or on duty should be counted as hours worked for overtime and minimum wage purposes.
There are two exceptions to this general rule.
First, meal periods, rest periods, and sleep periods are not considered hours worked if the au pair is free to leave the employer’s premises to use the time for their sole benefit and is relieved from all work duties during the time.
Second, au pairs who are on duty for 24 consecutive hours or more may enter into a written agreement to exclude meal periods, rest periods, and sleep periods from “working time,” so long as that written agreement (i) is in a language easily understood by the au pair; (ii) was entered into prior to the performance of services ; (iii) specifies which meal periods, sleep periods, and rest periods are not considered “working time”; and (iv) is signed or acknowledged by the au pair and the employer.
Still have questions? At Steffans Legal we have over a decade of experience representing employees that have not been paid minimum wage and overtime as required by Massachusetts and Federal laws. If you believe your employer is violating minimum wage and overtime laws contact employment lawyer Benjamin Steffans today for a free consultation.