OFFICAL RESPONSE TO PROPOSED AU PAIR REGULATIONS
The State Department published a proposed rulemaking to amend existing Au Pair Program regulations and is accepting public comments. Proposed regulations have no impact current placements and it is unlikely new regulations will take effect in 2024.
Go Au Pair believes the proposed regulations are unworkable and should be dismissed entirely. While there are good objectives trying to be achieved, the proposed rules as written would have catastrophic impact to the Au Pair program.
Our primary areas of concern include:
- A disastrous departure from the cultural exchange and family focus of the current program to an overdone emphasis on employer-employee rules
- An increased financial cost to Host Families, up to triple the amount, which could significantly inhibit hosting participation
- Unnecessary restrictions on Au Pair eligibility and options during the placement
- Unreasonable administrative burdens and restrictions placed on Host Families and sponsors
We encourage participants and members of the community to share their opinion with the State Department about the effects the proposed regulations would have on them personally and/or future participants. The comment period ends December 29, 2023. See below for how to comment.
Remember, these regulations are proposed and could be overthrown. To better understand how the rulemaking process works, click here.
A disastrous departure from cultural exchange and family focus
We appreciate and support the intention in the proposed regulations to specify child care responsibilities, work hours, wage deductions and to compensate Au Pairs appropriately. However, the proposed regulations as written will undoubtedly shift the entire mindset and feeling of the Au Pair Program away from family and into employment.
Specifically labeling tasks as “inappropriate” will cause Host Families and Au Pairs to hesitate, doubt and otherwise be discouraged from helping each other out like a family, thereby eliminating opportunities to form a close, loving, family member relationship. Confused expectations could result where, for example, an Au Pair believes it’s “inappropriate” to help empty the dishwasher or a Host Family believes they will be terminated from the program if they ask the Au Pair to pick up some milk from the grocery store on the way home.
Propose Regulations Interpreted
Proposed regulations attempt to define Au Pair childcare duties and differentiate against responsibilities which cannot be required. The following is a subset list of duties which the proposed regulations would label as “inappropriate”:
- running family related errands such as grocery shopping
- cleaning the house
- working in the yard
- preparing meals for the family
- cleaning the kitchen
Go Au Pair agrees these responsibilities do not pertain to childcare and should not be required. However, by labeling these tasks as “inappropriate”, we are concerned the proposed regulation will cause confusion and discourage the voluntarily acts of service essential for forming a family relationship. 62.31(j)(2)Duties.
Current regulations state Au Pairs “participate directly in the home life of the host family” and “provide child care services to the host family.” 62.31(a). Go Au Pair defines and specifies child care services during participant screening and selection and through regular monitoring during the program. Go Au Pair confirms required child care responsibilities are appropriate and encourages Host Families and Au Pairs to embrace the spirit of the program and support each other like family whenever and however feels right for them. Participants understand the difference between what feels like family and what feels like being taken advantage of and respond accordingly.
Proposed regulations structure hours and wages in a manner that will require Host Families and Au Pairs to calculate each week the flat rate pay, plus additional hourly pay, plus overtime premiums if applicable, less deductions actually taken (see below for more on deductions), less in-kind benefits used (see below for more). This weekly exercise will reenforce the feeling of employment and will literally require a calculator as every minute and hour is multiplied against an hourly rate.
Propose Regulations Interpreted
Proposed regulations reduce child care hours to 40 hours per week and significantly increase the weekly wage (to be discussed in more detail later). Reduced hours and increased costs coerce Host Families to track and schedule their Au Pair like an hourly employee. Proposed regulations require Families to choose between a weekly flat rate pay for 31 hours + hourly pay up to 40 or a weekly flat rate pay for 40 hours. A clever Family looking to manage costs would always choose the 31 hour flat rate + hourly pay option. Additionally, proposed regulations would require overtime premiums be paid for any time over 40 hours or hours over the maximum permitted per day per local, state and/or federal laws. 62.31(n)(4)(iv) Overtime.
Current regulations state Au Pairs “are compensated at a weekly rate based upon 45 hours of child care services per week”. The minimum weekly stipend flat rate is paid regardless of the number of hours actually worked and provide a simple and predictable compensation structure to participants. Au Pairs are responsible for documenting a simple log of hours and pay and are empowered to raise any concerns to their Host Parents, Local Rep and/or Sponsor as needed. 62.31(j)(1).
Host Families today provide above and beyond for their Au Pair like a member of the family. Proposed regulations would require Host Family and Au Pair to sit down each week and add up the dollar amounts of every meal the Au Pair ate in the home, every night spent in the bedroom and every mile the Au Pair drove in the car for personal use. Regularly requiring this calculation, not only forces Families and Au Pairs to constantly consider the cost of breakfast, but also highlights the benefits the Au Pair receives which are not included in deductions. Does the Au Pair need to pay for his/her own snacks or food consumed outside of a proper meal? Does the Au Pair buy their own toilet paper and use their own Netflix account? Itemized deductions with hard dollar amounts will make it impossible for the Family and Au Pair to feel like a family.
Propose Regulations Interpreted
The proposed regulations specify the amounts and items deducted for “room and board” and “in-kind benefits” and only allow deductions when benefits are “actually provided”. The proposed regulations state “Credits for room and board may be taken only when the employee actually receives the lodging and meals.” Yes, the regulation actually uses the word employee and yes, it means if the Au Pair eats out one night with friends the deduction cannot be taken. 62.31(n)(2).
The regulations continue: “$2.72 for a breakfast, $3.63 for a lunch, and $4.53 for a dinner (or $10.88 per day if all meals are provided)…for lodging actually provided: $54.38 per week”. Lastly, the proposed regulation defines deductions for in-kind benefits, such using a car for personal reasons which we believe will be calculated as a per mile credit akin to the IRS deduction. 62.31(n)(3) and 62.31(f)(1)(v).
Under current regulations the Au Pair’s weekly stipend includes a flat 40% deduction for room and board. Although the calculation exists, little to no emphasis is placed on the amount because Host Families focus on providing for the Au Pair like a member of the family. The most common “room and board” items a Host Family provides to their Au Pair include:
- a fully furnished bedroom with bedding,
- a bathroom with towels and common toiletries (toilet paper, shampoo, soap, hand soap, etc),
- general access to the home including kitchen and family room,
- utilities (power, gas, sewer, trash, etc), internet and TV service(s),
- meals and snacks eaten in the home, as take out or delivery, and when out together,
- access to a car for personal use (private or shared), auto insurance and maintenance/repair,
- cell phone service and sometimes an actual phone,
- computer access and sometimes an actual computer,
- vacations, gifts and sometimes gym memberships.
The sum of even half of these benefits greatly exceeds the 40% deduction used today. Host Families are happy to provide for their Au Pair as a part of the family because the program feels like a good “deal” for everyone.
Propose Regulations Interpreted
Additional proposed regulations replace opportunities for family relationships with strict, overdone employment rules.
Proposed regulations would require Au Pairs to be compensated for 32 hours of required child care training and online or in-person driving instruction. Paying Au Pairs for training shifts expectations on the outcome and results of that training, as Au Pairs would be expected to memorize the content and receive perfect scores on tests and exercises. There is also inconsistency between Au Pair’s themselves. What if the Au Pair needs to re-take a test, are they paid more? What amount is paid to the Au Pair since it is conducted in their home country? Does a native English speaking Au Pair who finishes in less time receive the same pay as an Au Pair who self-studies slower? 62.31(g).
Proposed regulations would make family vacations feel like a work trip with the boss. By explicitly listing all costs to be paid by the Family and by removing the option for any part of the trip to be considered the Au Pair’s paid vacation, proposed regulations set the tone that vacations provided by the Family are expected and the Au Pair will work per usual. Instead of families taking their Au Pair on vacation because they want to, they are paying for a work trip because they have to. Vacations are no longer a cultural exchange family bonding experience, it is an employment transaction. 62.31(j)(5)(iii) and 62.31(k)(1)(v).
Proposed regulations mandate 7 days of paid sick leave (56 hrs divided by 8 hrs/day equals 7 days). What if the Au Pair doesn’t need sick leave? The proposed regulation essentially adds 7 days to the existing 14 days of paid vacation and pro-rated allocations are required in situations of rematch and extensions. Specifying sick pay in regulations is disheartening as it takes away one of the best opportunities for “family helping family”. How many times will the Au Pair help out unexpectedly to pick-up a sick kid from school or daycare? In turn, on the rare occasion the Au Pair needs a sick day, this regulation destroys the opportunity for Host Parents to payback the gesture. 62.31(k)(1)(iv) and 62.31(c)(1)(v).
Proposed regulations require Family Day Conference attendance count as work hours for the Au Pair leaving fewer hours for actual child care in an already reduced weekly limit (40 vs. 45 per week). Under current regulations Au pairs receive their weekly stipend regardless of hours worked or time spent attending events. Additionally, the proposed regulation implies the Au Pair is working, which prevents the event from feeling fun. 62.31(m)(2)(iii).
Proposed regulations make timesheets and wages so complex that Families will practically need payroll software to calculate, track and report to sponsors. Proposed regulations place the responsibility on the Family to “create a written weekly document signed by the host family and the au pair (in wet ink or using electronic signature) detailing the number of hours and days of provided child care that week, the number of hours used as the required time off, the total amount of compensation paid to the au pair for that week, any room and board deductions taken, any paid time off or sick leave used” and the signed documents must be collected and reviewed by sponsors each month. 62.31(m)(6)(i) and 62.31(m)(6)(ii)
As a final example of how proposed regulations are overreaching and eliminate any chance for a family relationship, regulations even dictate how the Au Pair is paid. “Sponsors must ensure that: (1) Host families compensate au pairs on a weekly basis based on the maximum number of child care hours of the au pair program and for any hours worked in excess of that maximum number and keep a document as set forth in paragraph (m)(6) of this section. Weekly payments shall be deposited directly into a bank account held in the au pair’s name.” 62.31(n).
Public opinions matter and have significant influence on the future of the Au Pair Program. We encourage you to share your opinion with the State Department about the effects the proposed regulations would have on you personally and/or future participants. Comment period ends December 29, 2023.
HOW TO COMMENT
All comments are reviewed and cataloged by the State Department as part of the rulemaking process. Join the 13,000+ opinions and shape the future of the Au Pair Program.
You may comment multiple times during the public comment period. Thoughtful, substantive comments have the greatest impact and should include:
- explanation for why the proposed regulation(s) are or are not effective
- explanation of the impact the proposed regulation(s) would have on your personal situation and life
- constructive alternatives
What is the rulemaking process?
Remember, these regulations are proposed and could be overthrown. The rulemaking process is lengthy. After the commenting period closes all comments are analyzed and the State Department considers modifications. More comments means a longer analysis period. The revised regulations then return to the Office of Management and Budget (OMB) for a review period of up to 90 days, and after that the process to publish starts all over again.