Au Pair Program Preservation

Negative Impact

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

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.

Negative Impact

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

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).

Negative Impact

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).

Current Regulations

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).

In 2019, the Supreme Court of Massachusetts ruled on a case about the federal regulations of the Au Pair Program. Despite receiving a State Department issued amicus brief describing the intents of the Au Pair Program as a federally ruled program which supports federal diplomacy objectives, the court ruled that the preemption over state or local labor laws was not clear, therefore subjecting Host Families to Massachusetts minimum wage ($12.75 in 2019), overtime requirements and reduced deductions. The ruling resulted in a 161% increase to Au Pair stipends.

By the end of the year, Go Au Pair witnessed a 75% decline of Au Pair placements in Massachusetts where families specifically cited increased cost as the reason for leaving the program. Across the entire Au Pair industry, numbers of Au Pairs in Massachusetts dropped from 1,460 in 2019 to 466 in 2022 equaling a 68% reduction in Host Family participation.

Proposed regulations would increase the Au Pair stipend by 242%, 173%, 104% and 12%, depending on the location of the Family (explained below). At least 15 states would experience stipend increases which exceed what Massachusetts experienced in 2019.

Go Au Pair is fearful the entire Au Pair Program would experience a 70-75% decline in Host Family, and therefore Au Pair participation. For Au Pairs, this means 3 of your Au Pair friends simply wouldn’t be here. For Host Families, most would be back to the drawing board trying to find an affordable child care solution.

Proposed regulations would have Families paying more but getting less hours. The combination of increased stipend and increased educational allotment plus reduced hours and reduced deductions results in a significant price change for Host Families. The proposed changes to stipend, deductions and reduced hours result in a 242% increase for Tier 1 ($21,865/yr), 173% increase for Tier 2 ($15,625/yr), 104% increase for Tier 3 ($9,385/yr) and 12% increase for Tier 4 ($1,065/yr) (see below for tier explanation).

Structuring Au Pair stipends off state and local minimum wage is illogical because minimum wage amounts are set to cover costs of living expenses the Au Pair’s do not pay for or are not applicable. State and local minimum wage amounts consider housing, food, transportation, child care and health care. Au Pairs do not bear the burden of these expenses, the Host Families do! (See a full list of what’s commonly provided by Families here.) It’s even further illogical to recognize state and local minimum wage but only federal amounts for room and lodging deductions when two of the costs minimum wage considers are food and housing.

Proposed regulations make Au Pair stipends incredibly complicated. (See above for how it feels like employee.) Families would need to monitor changes to state and local wage laws, choose between a full-time and part-time option, calculate the pay each week based on hours worked, calculate and report to sponsors any overtime, determine how many meals and nights of lodging can be deducted, calculate in kind benefits and submit to sponsors monthly timesheets tracking all of the above.

Proposed changes to stipend payments incentivize Au Pairs to choose a Host Family based on money instead of family fit or cultural experience. An Au Pair placed in California is positioned to receive $20,800 more than an Au Pair placed in Texas during the year. This pay disparity contaminates the spirit of the program and damages the diversity of experiences possible.

Proposed regulations would increase the education allotment by almost 2.5 times the current rate. Of all the proposed cost increases, the educational allowance is one that makes sense. Sponsors, participants and the State Department unanimously agree the current allotment is not sufficient to meet program requirements and we’ve waited more than a decade for the change. Unfortunately, since the proposed education increase is combined with the other extreme and severe increases, this too now feels unreasonable.

Propose Regulations Interpreted

Pay. Proposed regulations introduce a tiered stipend minimum payment system based on current state or local wage. Four tiers would exist and families would always pay the highest amount of the tier regardless of actual state minimum wage. Proposed regulations introduce two options for weekly minimum pay based on 31 hours or 40 hours. When the 31 hours minimum is chosen, excess hours up to 40 are paid at hourly rate. In either option, excess hours over 40 is paid at overtime wages based on state/local/federal laws which is commonly at time and half. 62.31(n)(4)(ii) Compensation, 62.31(j)(6) Compensation, Introduction, Compensation, 62.31(n)(4)(iv) Overtime Compensation, 62.31(t)(3) Relationship to state and local laws, 62.31(a) Purpose.

Tier 1:

• Au Pair hourly rate = $18.00 / hour
• Weekly minimum stipend at 31 hours = $558 before deductions
• Weekly minimum stipend at 40 hours = $720 before deductions
• States included and state minimum wage as of November 2023:
  • Washington ($15.74), California ($15.50), District of Columbia ($15.20)
• 3 states paying over state min. wage, ranging from $2.26 to $2.80 / hour more.

Tier 2:

• Au Pair hourly rate = $15.00 / hour
• Weekly minimum stipend at 31 hours = $465 before deductions
• Weekly minimum stipend at 40 hours = $600 before deductions
• States included and state minimum wage as of November 2023:
  • Connecticut ($15.00), Massachusetts ($15.00), New York ($14.20), Oregon ($14.20), New Jersey ($14.13), Arizona ($13.85), Colorado ($13.65), Maryland ($13.25)*, Vermont ($13.18), Illinois ($13.00)**, Rhode Island ($13.00), Maine ($12.15)
• 10 states paying over state min. wage, ranging from $0.80 to $2.85 / hour more.

* Maryland minimum wage set to increase to $14.00 on 1/1/2024 and $15.00 on 1/1/2025

** Illinois minimum wage set to increase to $14.00 on 1/1/2024 and $15.00 on 1/1/2025

Tier 3:

• Au Pair hourly rate = $12.00 / hour
• Weekly minimum stipend at 31 hours = $372 before deductions
• Weekly minimum stipend at 40 hours = $480 before deductions
• States included and state minimum wage as of November 2023:
  • Florida ($12.00), Hawaii ($12.00), Missouri ($12.00), New Mexico ($12.00), Virginia ($12.00), Delaware ($11.75)*, Nevada ($11.25)**, Arkansas ($10.85), South Dakota ($10.80), Minneapolis ($10.59), Nebraska ($10.50), Michigan ($10.10)***, Ohio ($10.10), Montana ($9.95), West Virgina (&8.75).
• 11 States paying over state min. wage, ranging from $0.25 to $3.25 / hour more.

* Delaware minimum wage set to increase $13.25 on 1/1/2024 which will move them into Tier 2.

** Nevada minimum wage set to increase to $12.00 on 7/1/2024.

*** Michigan minimum wage set to increase to $10.33 on 1/1/2024 and every year after ending at $12.05 on 1/1/2031. At that time Michigan will move to Tier 2.

Tier 4:

• Au Pair hourly rate = $8.00 / hour
• Weekly minimum stipend at 31 hours = $248 before deductions
• Weekly minimum stipend at 40 hours = $320 before deductions
• States included and state minimum wage as of November 2023:
  • Alabama ($7.25), Georgia ($7.25), Iowa ($7.25), Indiana ($7.25), Idaho ($7.25), Kansas ($7.25), Kentucky ($7.25), Louisiana ($7.25), Mississippi ($7.25), North Carolina ($7.25), North Dakota ($7.25), New Hampshire ($7.25), Oklahoma ($7.25), Pennsylvania ($7.25), South Carolina ($7.25), Tennessee ($7.25), Texas ($7.25), Utah ($7.25), Wisconsin ($7.25), Wyoming ($7.25).
• 20 States paying over state min. wage, $0.75 / hour more.

Deductions

Proposed regulations introduce three significant changes to the current federal room and board deductions. The first change replaces the current built-in, 40% deduction math calculated in today’s weekly stipend minimum with itemized deductions. Deduction calculations include: $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), $54.38 per week for lodging, total permissible credit towards an au pair’s wages per week for a full seven days of room and board actually provided is $130.54.

The second change is the introduction of the stipulation that meals and lodging must actually be provided in order to be deducted from stipend. Meaning, anytime an Au Pair eats out with friends or goes on vacation and sleeps somewhere else, the deduction cannot be taken.

Thirdly, is the introduction that the deductions do not change based on stipend tier (aka based on state min wage) and must always be the lowest possible deduction amount. 62.31(n)(2) Deductions, Introduction, Compensation.

Education

Proposed regulations increase the Host Family’s contribution to $1,200 for the year. 62.31(o)(6) Educational Component.

Current Regulations

Current regulations calculate the national minimum stipend at federal minimum wage, times 45 hours per week, lessor 40% room and board deduction. This minimum amount is expected to be paid all 52 weeks of the year regardless of the number of hours worked, regardless of the amount of food consumed, and regardless of whether the Au Pair is on vacation or not. 62.31(j)(1) Wages and hours. Education allowance is currently $500 for the year. 62.31(k)(1) Educational component.

Proposed regulations would pay Au Pairs more than minimum wage in 44 states and cost families up to quadruple the amount of the current program. Higher pay comes with higher expectations which shifts the Au Pair experience away from family cultural exchange and more towards professional child care services. When Au Pair Program costs start to range in $21,000 to $42,000, Host Families become a little less forgiving over cultural mistakes or language misunderstandings. Families will start comparing the cost of an Au Pair who needs some driving lessons with the cost of a local person who has their own car. Families may not be so patient when their Au Pair misunderstands what time to pick-up the kids or doesn’t know how to use the washer and dryer. Families could expect their Au Pair to pay for their own groceries or their own Netflix account. Increased pay combined with fewer child care hours leaves no time for mistakes or extra help.

Negative Impact

50% of our Host Families would no longer qualify for the Program from this regulation update alone. Requiring a private bathroom for the Au Pair implies a home that can afford a private bathroom and would immediately disqualify families who have their Au Pair share a bathroom with the kids.

Propose Regulations Interpreted

Proposed regulations require the Au Pair to have a private bathroom which is “not shared with a family member or any other resident in the home”. 62.31(e)(1)(vi) Au Pair Placement, 62.31(i)(2)(vii) Host Family Orientation, 62.31(j)(13) Host Family Agreement, Home Environment.

Current Regulations

Current regulations do not specify bathroom requirements, leaving it up to Sponsors to define and enforce suitable requirements.