Au pair lawsuit reveals collusion and large-scale wage theft from migrant women through State Department’s J-1 visa program
Last week, the Associated Press (AP) reported on a proposed settlement agreement for $65.5 million between a dozen former au pairs from Colombia, Australia, Germany, South Africa, and Mexico who were brave enough to bring a lawsuit against the companies that recruited them to work the United States. Thanks to the former au pairs and the tireless efforts of the smart lawyers at Towards Justice, a nonprofit organization in Denver, nearly 100,000 young migrant workers (mostly women) will finally receive some portion of the wages they should have been paid while working in the United States providing low-cost child care to Americans.
The migrant au pairs doing this work as in-home caretakers were employed in the United States through the U.S. State Department’s Au Pair program, one of 15 programs in State’s J-1 visa Exchange Visitor Program. Each year about 20,000 au pairs are hired by American families, assisted by J-1 “sponsors,” which can be either for-profit companies or nonprofit organizations that act as labor recruiters for families looking to hire foreign au pairs, and to which the State Department has mostly outsourced the management and oversight of the J-1 visa program. The sponsors make money by charging the au pairs to participate in the program, as well as by charging fees to families in order to connect them to au pairs. According to the AP, in the lawsuit the au pairs claimed that the:
15 companies authorized to bring au pairs to the United States colluded to keep their wages low, ignoring overtime and state minimum wage laws and treating the federal minimum wage for au pairs as a maximum amount they can earn. In some cases, the lawsuit said, families pushed the limits of their duties, requiring au pairs to do things like feed backyard chickens, help families move and do gardening, and not allowing them to eat with the family.
It gets worse. Not only was the federal minimum wage of $7.25 treated as the maximum the au pairs could be paid, the actual wage they received was far less:
The sponsors said they were just following regulations from the State Department — which last adjusted au pair pay to $195.75 for a 45-hour work week in 2009 after the federal minimum wage rose to $7.25. Their hourly wage has actually been $4.25 though: Families were told to deduct 40 percent of their pay to cover the room and board they’re required to provide the au pairs, a practice challenged by the lawsuit.
The sponsors’ rationale for paying migrant au pairs so little? Because paying them a fair wage, or even just the state or federal minimum wage—which in most cases is still far from a living wage—would hinder the State Department’s foreign policy goal of facilitating a cultural exchange:
In court filings, the sponsors argued requiring families to pay more in states with higher minimum wages would destroy the program by making au pairs unaffordable, hurting its foreign policy goals.
While the sponsor companies will not admit to any wrongdoing under the terms of the settlement, this is undoubtedly a massive victory for the low-wage workers who were taken advantage of by sponsors and by a U.S. federal agency. But the root of the problem is not that a few companies colluded to keep wages low for migrant au pairs; it’s much bigger than that. The J-1 Au Pair program has been scandal-plagued since its inception over three decades ago but industry lobbyists have managed to ensure its survival. There’s been some great reporting on it recently: For example, see this in-depth article in the Washington Post from 2016 and a follow-up podcast on Reveal News with the author, as well as a report published by Politico Magazine in 2017, “They Think We Are Slaves,” that exposed severe deficiencies in the program. The Politico report obtained internal documents from the State Department and paints a picture of an agency with little interest in protecting participants, noting that thousands of complaints from migrant au pairs over the years were often not “thoroughly investigated or even publicly reported” and that program regulations are ignored with impunity by many host families.
The overarching structure for the program, however, is still in place and Congress has failed to propose any reforms or to ever hold any oversight hearing examining any aspect of the Au Pair program or the broader J-1 visa program—which includes the Summer Work Travel, Intern, Trainee, and Camp Counselor programs—despite numerous cases and reports of worker exploitation and human trafficking.
The J-1 program grew out of the Fulbright-Hays Act of 1961, with its noble goal of “increase[ing] mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange.” A few of the J-1 programs live up to this language, for example by allowing Fulbright Scholars and professors to study and teach in the United States, but many of the J-1 programs are simply unregulated low-wage work programs. Beginning over seven years ago, I explained in Guestworker Diplomacy and numerous commentaries how the J-1 visa is now mostly a temporary labor migration program disguised as a cultural exchange and administered by an agency—the State Department—that has no staff expertise in regulating, monitoring, or enforcing labor- and employment-law related issues. The State Department is wholly unqualified to manage the J-1 program and the U.S. Department of Labor has no formal role in any of the J-1 programs, leaving workers with little recourse when things go wrong, since the sponsor companies tasked with protecting them are often profiting from the existence of the program, making them unlikely allies. Media reports and organizations that advocate on behalf of J-1 workers like the National Guestworker Alliance, Centro de los Derechos del Migrante, and the Southern Poverty Law Center have revealed real-life stories of how this arrangement results in a dysfunctional program where severe abuses and exploitation of young migrants are regular occurrences.
There’s no question that child care is too expensive in the United States—EPI has shown how child care is unaffordable for most and one of the costliest expenses that families face—if any progress can be made, large-scale solutions and federal involvement will be required. Families that have child care needs but can’t afford to pay for them deserve help. The J-1 lobby, knowing this, has successfully leveraged this reality with members of Congress to protect the J-1 Au Pair program from scrutiny. But the answer to America’s child care affordability crisis is not to have the State Department run a program that allows migrant women to be underpaid, abused, and exploited. The $65.5 million settlement in Denver is just the latest piece of evidence proving that the J-1 Au Pair program is an unregulated low-wage work program veiled in the false noblesse of achieving America’s foreign policy goals.