January 27, 2024
Submitted through: https://www.regulations.gov/commenton/DOS-2023-0025-0001
Re: Exchange Visitor Program–Au Pair, Doc. No. DOS-2023-0025-0001, 88 Fed. Reg. 74071, RIN 1400–AF12 (October 29, 2023)
Dear Director Ward:
Centro de los Derechos de Migrante, Inc. (CDM) writes to provide input on the Department of State’s proposed rules for the au pair program. While we applaud the Department’s clarification of the applicability of state and local minimum wage and overtime protections and efforts to better protect au pairs through increased transparency, the rule will fall short of its goals without improved enforcement mechanisms. Worse, it threatens to harm au pairs by depriving them of other key protections currently available under state and local labor laws.
Centro de los Derechos del Migrante is a founding member of Migration that Works, which will submit a separate comment on the proposed rules. CDM endorses all recommendations made in the Migration that Works comment. We submit this supplementary comment to provide additional information on our priority issues, highlighting the perspectives of former J-1 au pairs.
- Our Organization
Founded in 2005, Centro de los Derechos del Migrante (CDM) supports Mexico-based migrant workers to defend and protect their rights as they move between their home communities in Mexico and their workplaces in the United States. CDM collaborates with workers to transform the power imbalances that harm people in the J-1 and other temporary work visa programs and to ensure that labor migration policies reflect workers’ voices, experiences, and priorities. CDM also provides direct legal services and operates an intake line offering information, resources, and referrals to migrant workers in the United States, including J-1 au pairs.
- Comments on the Proposed Rule
CDM’s comments below draw on our years of experience working alongside J-1 au pairs as legal advocates and counselors, extensive participatory research we have conducted with au pairs, as well as in-depth interviews with two former J-1 au pairs specifically focused on this rulemaking. A central theme we have heard from au pairs over the years is that work, rather than cultural exchange, is the fundamental component of the J-1 au pair experience. One former au pair who contributed to this comment explained:
Agencies lie to us in our home countries. The agency tells you that you’re going to enjoy a cultural experience, that you will have a cultural exchange with a family, and that the family will adopt part of your culture and you part of theirs. The au pair arrives at a complete disadvantage . . . you have to work more hours than the contract says . . . and the pay is 3 or 4 dollars per hour, you have to work for literally two weeks to be able to pay for the cost of a medical appointment. I wanted to attend English classes and [my host family] never helped me get to school. So in reality, I was never able to go to classes because I didn’t have access [to transportation] to leave the house.
Another former au pair who contributed to the comment described her disillusionment at coming to the United States expecting to participate in a well-monitored cultural exchange program, only to find that she was expected to work long hours and was not supported in her educational goals:
Honestly, I had great expectations for the [au pair] program, because it seemed to offer security, that the families would follow certain rules . . . but it was totally different . . . I was required to clean, in my free hours I had to clean bathrooms or clean the house, something I had thought the program wasn’t for. I was also required to work a lot at night and on the weekends–even though I was supposed to have two free weekends per month, I always worked on weekends. The family wouldn’t pay for my English classes.
While our comments below focus on specific elements of the proposed rules, at a broader level, we urge the Department to acknowledge the reality of au pairs’ experiences and to recognize that conceiving of the program as solely a cultural exchange program puts au pairs at great risk of abuse.
- Host Family Agreement.
CDM joins Migration that Works in supporting the intentions of the Department’s proposed regulations addressing the Host Family Agreement, which aim to improve transparency and alignment of expectations between au pairs, host families, and sponsor agencies. We particularly applaud the following provisions, which address recurring concerns we hear about from au pairs:
- Duties. While ostensibly already prohibited, it is common for host families to require au pairs to do general cleaning and other tasks outside the parameters of the childcare duties they were recruited for. As an au pair who contributed to Shortchanged, a report on the J-1 au pair program CDM co-authored in 2018, described:
They were expecting me to work as a maid. I worked with them for more than fifty hours. Even when they were home I was still working. They wanted me to do a lot of home services; I ended up cleaning the house alone.
More clearly defining permissible and non-permissible duties will help improve alignment of expectations between au pairs and host families.
- Weekly schedule; Weekends; Hours of child care. As the au pairs described above, and CDM has repeatedly heard from au pairs who contact us on our intake line, it is extremely common for host families to require au pairs to work more than the hours they were promised, without any overtime pay. Au pairs also report substantial schedule instability, often being required to work during hours that were originally designated as time off. As one au pair who helped CDM prepare this comment described:
The family wouldn’t count the hours in which I [was required] to clean, and counting the cleaning hours I think I worked about 60 hours per week. I always worked extra hours, and I was never paid for the extra hours.
Designating and disclosing a work schedule in the Host Family Agreement, requiring advance notice of when weekend work will be required, and clarifying the maximum permissible hours per week are important incremental steps toward addressing the harm caused by this uncertainty and overwork.
Other aspects of proposed rules governing the Host Family Agreement, while well-intentioned, fail to address some of the most insidious abuse in the au pair program. For example, while we support the transparency goals of the Fees provision, it is not enough to merely require sponsor agencies to disclose all the fees they intend to charge or have charged au pairs. Instead, to meaningfully protect au pairs the Department must actually limit the fees sponsors and their third parties can charge workers, including recruitment fees as described in greater detail in the Migration that Works comment. As described in Shortchanged, it is common for au pair sponsor agencies and their agents to charge workers exorbitant recruitment fees. Workers often go into debt to be able to cover these fees, and may feel pressured to remain in abusive employment situations because of this debt.
Likewise, while we appreciate the Deductions provision’s clarification of the permissible amount host families may deduct from au pairs’ wages for room and board, this provision misses key opportunities to better address abusive practices in the au pair program. As described in the Migration that Works comment, the Department should set minimum standards for what room and board includes and should set a cap on permissible deductions for incidentals. CDM has repeatedly encountered au pairs who have been provided inadequate food or living accommodations. For example, one au pair who helped prepare this comment described:
When I arrived, the family I worked for at first didn’t give me the type of food that would be necessary for any other person; instead they just gave me something very basic, without fruits or vegetables or anything like that.
However, most crucially, even the most well-crafted provisions of the Host Family Agreement rules are unlikely to achieve their intended effect because the agreement lacks sufficient enforcement mechanisms. The Department states that it “relies on sponsor organizations to work with involved parties to reach a resolution” when employment-related disputes arise. The experience of the many au pairs CDM has worked with over the years demonstrates that this reliance is deeply misguided. As a former au pair described:
This agency only recruits girls to use and exploit. If the family treats you badly, they don’t care. They don’t support you. The local coordinators support the family at all times. The au pair is alone. She doesn’t have anyone’s support. It’s a scam.
Indeed, one former au pair who experienced sexual harassment and other severe abuse at work told CDM that when she approached the agency for help:
They didn’t help me at all, I was totally unsatisfied by their response. I ended up with trauma, it’s less frequent now but before I would wake up every night crying . . . when I complained to the agency by phone, they didn’t do anything. I called the county and someone from the county came and took notes . . . the agency told me it was the first time it happened, but I don’t think that’s true. In the group of au pairs I was in, it was something that happened all the time.
This type of experience is echoed by the majority of au pairs who contact CDM seeking help–most of them have attempted to resolve their issues with their sponsor agency and gotten nowhere. At best, some sponsor agencies have allowed workers who experienced severe abuses to rematch, with no support for healing from their trauma or recourse to make them whole; at worst, sponsor agencies have retaliated against workers who have sought help by terminating their programs following a labor dispute with the host family the sponsor failed to resolve.
The au pairs who contributed to this comment called on the Department to strengthen its oversight mechanisms from the J-1 program by ensuring that government regulators play a stronger role in ensuring host family and sponsor agency compliance:
There should be a regulatory entity of the government that can corroborate that the program is being carried out according to the established guidelines. Right now, the regulator is the company in charge of the program, that’s who’s the mediator between the families and the often. Most of the time, they’re not impartial mediators.
Another worker offered a similar suggestion:
There should be someone [au pairs can contact] in case of emergency, the opportunity to speak with someone who really is willing to help the au pairs. Usually, [sponsor agency staff] just take the side of the families.
As described in the Migration that Works comment, the Department should clarify that the Host Agreement is a contract containing legally enforceable rights. Additionally, the Department must create mechanisms to regularly audit sponsors’ enforcement of host agreements and for au pairs to complain directly to the government about violations and initiate government-led investigation and resolution processes carried out in coordination with the Department of Labor.
Finally, the Department should add language making clear that sponsors must provide au pairs copies of the Host Family Agreements in their first languages, as well as any amendments. As one au pair who helped CDM prepare these comments explained:
I didn’t fully understand the rules. I would say that this should be translated into Spanish or the au pair’s language, so that au pairs can be aware of what the rules are.
- Wages.
CDM fully supports the intention of the Department’s proposed changes related to wages. We endorse the Migration that Works comment’s suggestions to strengthen these proposals and ensure they achieve their goals, and applaud the Department for recognizing the importance of these long-overdue updates and clarification of the applicability of state and local minimum wages and overtime protections to au pairs.
- Preemption.
CDM echoes Migration that Works’s serious concern about the proposed rule’s attempt to deprive au pairs of all state and local labor protections that the Department may determine pose an obstacle to the realization of the objectives of the au pair program. CDM has worked with many au pairs who worked in jurisdictions that provide workplace protections that go above and beyond federal protections not just related to minimum compensation and overtime but also including paid sick time, workers’ compensation insurance, meal and rest breaks, protections against discrimination, and protections against trafficking and retaliation. Courts have repeatedly found that au pairs are domestic workers protected by these state and local labor standards.
As the Migration that Works comment describes in greater detail, even where the proposed rule purports to replace state or labor law protections with comparable benefits, the fact that it contains no real enforcement mechanisms may result in au pairs being stripped of much-needed protections. We ask the Department to reconsider these sections, and to recognize that federal law should create a floor for minimum labor protections, not a ceiling.
- Conclusion
We appreciate the Department’s efforts to address au pair compensation and transparency, and urge you to use this opportunity to ensure au pairs have access to meaningful labor protections. In the words of one of the former au pairs who helped CDM create this comment:
Firstly, I would suggest that the program speaks honestly about what the program is about. What it really consists of. You’re coming as a nanny, not as an exchange student, which is what they sell you. There should also be some government entity that regulates the program and that can see whether the program rules are really being followed.
Thank you for your attention to these issues and the opportunity to provide input.
Sincerely,
Centro de los Derechos del Migrante, Inc.