On February 10, 2023, the U.S Department of State submitted a proposal for new regulations for the Au Pair Cultural Exchange Program to the government’s Office of Management and Budget (OMB). We support this positive momentum and look forward to the opportunity to review the proposed new regulations in full once they become publicly available. The public will also have an opportunity to provide comments and feedback for 60 days before the U.S. State Department makes any final rules.
AuPairCare has been operating the au pair cultural exchange program with guidance from the Department of State for over 30 years. We believe in the mission of the au pair cultural exchange program and its benefits to all its participants. The au pair program has a robust set of comprehensive federal regulations, including limits on working duties, hours, minimum stipend payments, paid vacation time, and time off. These are important requirements that both families and au pairs must abide by in order to participate in the program.
Even though au pairs are part of a federal cultural exchange program, there are some groups that believe au pairs should be included in the definition of a domestic worker and be subject to state and local labor laws in addition to federal regulations. In December 2019, the U.S. Court of Appeals covering Massachusetts ruled that the federal au pair regulations do not preempt state and local laws. The effect of that holding was to weaken the federal regulations of the au pair program, thereby enabling other states and localities to attempt to reclassify this federal cultural exchange program into a domestic workers program. Some localities with pending domestic worker bills are still deciding if au pairs should be included in their definition of a domestic worker. If left unchecked, these efforts will undermine the federal au pair program’s public diplomacy mission because of inconsistencies in disparate state and local laws, directly regulating participants of this inherently Federal cultural exchange program.
AuPairCare supports the U.S. Department of State reaffirming that its federal regulations preempt state and local laws. The U.S. Department of State was very clear in the Administration’s 2018 Amicus Brief declaring “the Federal au pair regulations do not leave room for a state or municipal government to impose terms of employment for au pairs that differ from the terms set forth in the regulations."
The Administration’s Office of Management and Budget recently released its Federal Regulatory Agenda for Fall 2022. The proposed rule is to clarify and modernize the au pair program which would specifically address the preemption of federal law over state and local laws in regards to au pair wage standardization.
We appreciate the U.S. Department of State’s strong support of the au pair program as an international cultural exchange program administered exclusively by the federal government and their continued vigilance in clarifying federal regulations.
In the meantime, AuPairCare adheres to the U.S. Department of State regulations and will continue to do so. With inflation and cost of living increases, we have introduced a new AuPairCare minimum weekly stipend of $215 per week which is higher than the U.S. Department of State minimum of $195.75. Host families and au pairs can agree to a stipend even higher than $215 per week minimum. Due to the employee-employer relationship between the Host and au pair, the Host is responsible for determining whether Workers’ Compensation insurance or any other insurance or tax requirements, is mandatory under federal, state and/or local laws. We recommend that you consult with the appropriate professionals and review AuPairCare’s best practices.
The sponsor community has been working together with the Alliance for International Exchange to educate state and local legislatures on the importance of the au pair program and all the current program regulations and processes in place to ensure the health, safety, and welfare of all program participants.
Host Families and advocates of the au pair cultural exchange program can contact the U.S. Department of State at email@example.com and express the need for updated regulations which clarify that the Federal Regulations of the au pair program pre-empt state and local law. You can also contact your local house representative and/or senators to have your voice be heard.