The federal Fair Labor Standards Act (FLSA) was designed to protect all employees working in the United States, regardless of their citizenship status. Now a class of au pairs are claiming their rights under America’s federal and state labor laws were violated by more than a dozen au pair companies based out of several states, including Massachusetts, New York, Utah, and Connecticut.
The class action lawsuit was filed in Colorado federal court in November 2014 by five au pairs from Colombia and South Africa. It alleges the J-1 Visa program, which is run by the U.S. Department of State, has basically become a source of cheap migrant labor for American families.
The wage and hour lawsuit names 15 different au pair companies as defendants, including Cultural Care Inc., Interexchange Inc., American Cultural Exchange LLC, the American Institute for Foreign Study, among others. The lawsuit alleges the companies conspired to keep the au pairs’ wages as low as possible.
According to the complaint, the au pairs allegedly had a portion of their wages illegally withheld in order to cover the costs of their room and board. After these deductions, the au pairs were only paid $195.75 per week. One named plaintiff testified that she worked 8-9 hours a day for her host family, amounting to a workweek lasting approximately 45 hours. Not only should she have been paid overtime for five of those hours under the FLSA, but at that rate she was only earning about $4.35 per hour, which is much less than the federal minimum wage of $7.25 per hour.
Because each state has its own minimum wage laws, many of which are higher than the federal minimum wage, the class action lawsuit is alleging violations of federal minimum wage law, as well as state minimum wage law, racketeering, antitrust, quasi-contract, fraud, unjust enrichment, and breach of fiduciary duty.
The defendants filed a motion to dismiss all the claims. Culture Care and Interexchange argued that, because the J-1 Visa program operates under the state department, the program falls under U.S. foreign policy and is therefore not subject to state minimum wage and employment law.
Judge Christine M. Arguello agreed to dismiss the claims under the Utah Minimum Wage Act and breach of contract, but ruled to allow all the other claims to proceed. In doing so, Judge Arguello agreed with U.S. Magistrate Judge Kathleen M. Tafoya, who recommended the au pairs’ allegations should be taken as true when determining whether to dismiss the claims.
In her decision, Judge Arguello pointed to the evidence the plaintiffs provided in their complaint, including admissions from employees of several of the au pair sponsors that the companies had agreed among themselves to keep au pair wages as low as possible.
Judge Arguello’s decision is a significant victory for the au pairs in this lawsuit, as it will allow them to pursue their claims in the courts. The class action lawsuit is seeking to represent thousands of au pairs who have been employed by the defendants over the years.
The Chicago class action attorneys at the Chicago Overtime Law Center have three decades of experience fighting to help employees who are victims of wage, overtime and tip theft by their employers. We have a team of Chicago unpaid overtime lawyers who concentrate on prosecuting state and nationwide class action lawsuits. Our attorneys work out of Chicago and Oak Brook offices and pursue claims for workers all over the Chicago area including Park Ridge and Oak Park. We protect unpaid workers who haven’t received overtime throughout the Chicago area including in DuPage, Kendall, Lake, McHenry, Kane and Cook Counties.
Our Aurora and Naperville overtime lawyers are intimately familiar with the issues that arise during wage claim litigation, and we know the laws that govern overtime cases well. Many employers mis-classify employees as being exempt from overtime laws and pay workers salaries instead of hourly wages in order to avoid paying them overtime. Some employers mistakenly classify employees as exempt and others intentionally do so in order to circumvent the law. In either case, workers do not receive the wages they should, and a lawsuit may be the only way to recover their earned wages.
The Chicago Overtime Law Center is based in Chicago, and represents clients throughout the country who have unpaid overtime and other employment right claims.