The First Circuit Court of Appeals issued a decision this week rendering au pairs in Massachusetts subject to the state’s wage and hour laws, which require that an employee be paid a minimum of $12.00 for each hour worked up to and including 40 hours in a single week and $18.00 for each hour thereover. Because many au pairs receive no more than the federal minimum wage of $7.25 per hour, this decision opens the door for many current and former au pairs to sue their host families to recover the difference.
Naturally, an au pair’s choice to sue her host family is much easier once she has completed her employment and is out of the host family’s home. For an au pair that is currently employed, however, that decision can be much more difficult because of the conflict that will arise once legal action is taken. Laws are in place to protect current au pairs from being retaliated against for seeking fair wages: A host family that willfully terminates the employment of a current au pair because such au pair sues for unpaid wages may be subject to a fine of up to $25,000 or imprisonment for up to 1 year for the first offense.
Let us do some math to figure out how much a typical au pair may be able to recover from her host family under Massachusetts wage and hour laws.
If an au pair works 45 hours per week at a rate of $7.25 per hour, she earns $326.25 per week.
Under Massachusetts wage and hour law, however, such au pair should be paid $570.00 per week:
40 hours x $12.00 = $480.00
+
5 hours x $18.00 = $90.00
= $570.00
Thus, the au pair is being underpaid by $243.75 per week:
$570.00 – $326.75 = $243.75
If the au pair has agreed in writing to deductions for food provided by the host family and the au pair freely chooses that food, the host family may deduct $1.25 for breakfast, $2.25 for lunch, and $2.25 for dinner, which is $5.75 per day. Assuming the au pair eats all three meals of her choosing at home 5 days a week, the host family can deduct $28.75 per week for food:
5 x $5.75 = $28.75
If the au pair is required to reside in the host family’s home, the host family cannot deduct any money for housing. If the au pair is able to freely choose her housing and agrees in writing to a deduction, the host family may deduct no more than $35 per week for a one-person room. Let us assume the deduction of $35 per week for housing.
With the deductions for food and housing, the au pair is being underpaid by $180.00 per week:
$243.75 – $28.75 – $35.00 = $180.00
Massachusetts wage and hour law also requires that the host family pay triple (3x) the amount of wages owed to punish the family for violating the law.
Thus, our au pair may collect $540 per week under Massachusetts wage and hour laws:
3 x $180.00 = $540.00
As for attorneys’ fees, the host family must pay the au pair’s attorney’s fees and legal costs if the au pair wins in court.
Attorney Newbill handles wage theft cases in Boston, Brookline, Cambridge, Newton, Chestnut Hill and surrounding areas, and can be reached by phone at 617-918-7567 or email at lucas@lucasnewbill.com.
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Attorney Lucas Newbill 