Isis Mabel made just $4.50 an hour caring for three children when she arrived in Massachusetts from Mexico as an au pair in 2016. Host families are required to give au pairs food, lodging and $500 toward educational programming, and the agency that she signed up with assured her that her earnings would be enough to cover her other needs, including travel. It is, after all, supposed to be a cultural exchange program.
But the money wasn’t even enough to cover her English classes, let alone anything else. “They wanted you to travel, they want you to study, they want you to do everything with that little money,” she said. “The truth is that it’s not enough.” Once when she was sick, she went to the emergency room, and while she was able to persuade the doctor not to charge her the full amount, she still had to pay nearly $100 for the visit and the antibiotics she needed. That left her with just $80 that week.
What was supposed to be a way for foreigners to learn English and get exposure to American culture has become almost entirely about providing cheap child care.
So she was shocked when her host family paid a local high school student $100 to watch the children for five hours on a Friday because Mabel had already put in the maximum 45 hours that week. “I was like, whoa, you paid some stranger,” she recalled. That kind of money never came her way—because her host family wasn’t required to pay her the full minimum wage as they were with the high school student.
The U.S. au pair program, which operates under Department of State J-1 visas, was founded in 1986 as a cultural exchange for people from other countries. Today it facilitates about 20,000 young people, mostly women, traveling from other countries to the United States to live with host families, providing child care for their children.
What was supposed to be a way for foreigners to learn English and get exposure to American culture has become almost entirely about providing cheap child care. There have been many reports of abuse suffered by au pairs. The program limits their hours to 45 a week, but they are usually required to work the maximum and some hosts push them past that. They are typically paid $4.35 an hour because host families are allowed to deduct 40 percent from the federal minimum wage of $7.25 an hour under the program’s rules to cover the room and board they are required to provide to au pairs. In theory, au pairs and hosts could negotiate for higher pay, but many hosts see that rate as a ceiling. Even when accounting for that deduction, the pay rate flouts laws in many states and cities with higher minimum wages than the federal floor. When Mabel was working in Massachusetts, for example, the state’s minimum wage was $10 an hour.
“A lot of au pairs have been treated poorly, overworked, underpaid,” said Angella Foster, director of community engagement for the Matahari Women Workers’ Center, which organizes domestic workers, including au pairs.
In light of these problems, the Department of State, which oversees J-1 visas, recently proposed new rules to, in theory, improve conditions for au pairs. But advocates who fight for au pairs’ rights oppose the proposed changes, arguing that the Department of State has not been following federal labor laws that apply to domestic workers and that the changes would only continue its errors and deploy authority it doesn’t have. They also say the proposed rules run roughshod over a number of protections au pairs are due under state and local laws.
“Now that the program is primarily a work program, regardless of how valuable it may be, it cannot be legally maintained as a federal program within the [Department of State],” the nonprofit National Domestic Workers Alliance and law firm Towards Justice wrote in comments they submitted about the proposed rule changes. “Absent authority to operate a work program for foreign live-in nannies, [the Department of State] must halt operation of the au pair program or dramatically restructure it. The proposed regulations do neither, and instead propose to continue operating a work program, while also preempting state and local labor protections.”
The Department of State’s proposed rules include a complicated formula to, supposedly, take higher local and state minimum wages into account while still enshrining the 40 percent deduction for food and lodging. The rules, if enacted as proposed, would require that au pairs’ pay be based off of the highest federal, state or local minimum wage where they’re placed through a four-step formula and a meal and lodging deduction. At the lowest, someone where the minimum wage is no higher than $8 an hour would be paid $8 an hour; at the highest, if the local wage is $15.01 to $18 an hour, they would have to be paid $18 an hour. Families would then deduct $130.54 a week for room and board.
In states and cities without minimum wages above the federal floor, au pairs would be paid $189.46 a week for 40 hours of work, up from $174 under current rules. At the highest wage tier, an au pair would make $589.46 a week for 40 hours of work. The rules would also require overtime pay above 40 hours, reduce the program’s maximum hours each week from 45 to 40, and increase the educational stipend au pairs get to attend English and other classes from $500 to $700.
The State Department has received a flurry of comments, mostly negative ones from host families, who were directly prodded by the private agencies that run the J-1 visa program to submit negative comments. They argue that being required to pay au pairs more will ruin the program. Natalie Jordan, senior vice president for au pair agency Cultural Care Au Pair, the largest in the country, warned the new rules would make the au pair experience “transactional” instead of a “familial experience.”
But advocates argue that the proposed wage increases violate rules for live-in domestic workers under the Federal Labor Standards Act, which say that such workers have to be paid at least the federal minimum wage for all hours worked. While there is a credit some employers can take for providing food and housing to an employee, it “must primarily benefit the employee, rather than the employer” and, NDWA and Towards Justice write, can’t apply if “the employee is required by law to stay in employer housing.” Since au pairs are required to live with host families and doing so benefits their employers, they argue that the credit shouldn’t apply. “The Department of State’s proposed rule is departing from those rules. It has created its own rules,” argued Rocío Ávila, senior employment law counsel and state policy director at NDWA. “The Department of State does not have the authority to create a new set of rules pertaining to meal and lodging and credits and deductions as they are doing in the rule.”
“They want to maintain its status quo,” Ávila added. “What they have proposed is erroneous. It is inconsistent with the current and established set of rules.”
Foster is concerned that the proposed rules would also pre-empt not just state and local minimum wage laws but domestic workers bill of rights that have been passed in ten states and three cities. Her organization helped fight for the one in Massachusetts, which went into effect in 2015 and guarantees minimum wage, overtime, time off, and other protections. Au pairs are explicitly covered and a court affirmed in 2020 that host families have to abide by the rights. The Department of State’s proposed rules “would deprive au pairs of their basic rights,” Foster said, such as “anti-discrimination, retaliation, compensation.”
Ávila argues that au pairs are live-in domestic workers who provide child care and should be treated as such, including by changing the visas they come in on. “It’s a work arrangement,” she said. “The cultural exchange or educational component isn’t the center of the experience.” Some host families, she noted, won’t sign off on letting au pairs take the hours they need to go to classes. Not to mention that, as Mabel experienced, the low pay often puts classes out of reach, let alone travel.
She’s backed up by some recent court decisions. In 2019, au pair agencies reached a $65.5 million settlement with nearly 100,000 au pairs to settle a lawsuit claiming the agencies colluded to keep pay low and ignored overtime and state and local minimum wage laws. The Massachusetts ruling also affirmed that au pairs are employees, not just cultural exchange visitors.
There are some parts of the Department of State’s proposed changes that advocates support. Those include allowing au pairs to participate on a part-time basis instead of exclusively at 45 hours a week, reducing the maximum full-time workweek, creating paid sick and other time off rules, formalizing agreements between hosts and au pairs and outlining their duties up front, protecting au pairs from privacy invasions such as putting cameras in bedrooms and bathrooms, raising standards for vetting both au pairs and host families, and creating reporting requirements to ensure host families pay au pairs correctly, among others. “There are some aspects of the proposed rules that we are going to say improves protections for au pairs,” Ávila noted.
But rather than have the Department of State propose new rules, advocates want to see the agency step away from regulation of the program entirely and allow the Department of Labor to determine what au pairs must be paid and whether host families can deduct a credit for meals and housing. “The Department of State lacks legal authority to even create this scheme,” Ávila said. “Put it in the hands of the agency that is charged by Congress to do so and let that agency produce their own set of rules.” The comments from NDWA and Towards Justice call on the Department of State to halt operating the program “until Congress authorizes it” as well as shelve its proposed rules.
Foster is fighting for a program that ensures au pairs across the country can enjoy the same benefits and protections afforded those in Massachusetts under its domestic worker bill of rights. “That’s what we really want,” she said.
Mabel got a taste of much better working conditions when she was matched with a second family in Massachusetts. That family only asked her to work 30 hours a week caring for their two young children and paid her $15 an hour. “I really felt relief,” she said. “That’s the word.”
She also started organizing with Matahari and watched as au pairs were brought under the protection of the state’s domestic workers bill of rights. After that she heard about fewer “horror stories,” she said.
“This should be the way to treat the au pairs,” she said. Rather than tinkering with existing rules that leave most of the exploitative pieces of the program in place, she said she wants regulators to look to the bill of rights, which has been in effect for four years now. “That should be the model, honestly, to follow,” she said.
Bryce Covert is an independent journalist writing about the economy. She is a contributing op-ed writer at the New York Times and a contributing writer at The Nation. Her writing has appeared in Time Magazine, the Washington Post, New York Magazine, the New Republic, Slate, and others, and she won a 2016 Exceptional Merit in Media Award from the National Women’s Political Caucus. She has appeared on ABC, CBS, MSNBC, NPR, and other outlets. She was previously Economic Editor at ThinkProgress, Editor of the Roosevelt Institute’s Next New Deal blog, and a contributor at Forbes. She also worked as a financial reporter and head of the energy sector at mergermarket, an online newswire that is part of the Financial Times group.