By Alice Browning
In March 2015, several au pairs visiting the United States through the J-1 visa cultural exchange program filed a class action representing almost 100,000 migrant workers. The au pairs alleged that sponsor agencies engaged in a wage-fixing conspiracy to artificially depress earnings in violation of antitrust laws, and wage and hour laws. The au pairs recently won a $65.5 million settlement from the sponsor agencies. Hopefully this settlement brings accountability to the au pair sponsor agencies and empowers au pairs and other J-1 visa holders to pursue claims of abuse, mistreatment, and underpayment.
An “au pair” is traditionally a young person who travels to a foreign country to learn the language and experience the culture while living with a host family and assisting with child care and housework. Congress designed the J-1 nonimmigrant visa program as an educational and cultural exchange visitor program to promote international understanding. The United States Department of State (DoS) oversees the program. The DoS has outlined fourteen J-1 Exchange Visitor Program categories: au pairs, camp counselors, college and university students, government visitors, international visitors, physicians, professors and research scholars, high school students, short term scholars, specialists, summer work travelers, teachers, interns, and trainees.
J-1 au pair program regulations state that payment must be in accord with the Fair Labor Standards Act (FLSA), the federal law covering minimum and overtime wages. Au pairs must be compensated at “a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of FLSA as interpreted and implemented by the United States Department of Labor (USDOL).” The United States Department of Labor (DoL) may enforce FLSA with respect to any employer, including host families. Under FLSA, au pair workers may be able to sue their host family employers in federal court when their rights are violated.
The J-1 Au Pair Program Lacks Oversight
The structure of the program and the lack of oversight creates a cheap source of domestic labor parading as a cultural exchange program; it therefore allows for labor exploitation and even human trafficking. Au pairs live with host families and are “a part of the family.” Since their “host parents” set the au pair’s work expectations, hours, job duties, and payroll, it is difficult for au pairs to assert their rights under the structure of the J-1 visa program.
Due to lack of transparency in the program and weak oversight, it is impossible to know the scope of the problem or the extent of abuse au pairs suffer. For example, the plaintiff in the class action case at issue, Ms. Beltran, provided child care for a host family and worked for the family, preparing meals, cleaning laundry, making beds, packing and unpacking the family’s luggage, cleaning vehicles, grocery shopping, gardening, and caring for the family’s chickens. The host family did not provide Ms. Beltran three meals per day, family members did not allow her to eat with them, and she often survived on leftovers. Regardless of how many hours she worked per day, the host family paid her the same stipend of $195.75 per week. No one from Ms. Beltran’s sponsor agency ever visited her at the host family’s home.
Beltran v. AuPairCare, Inc.
Ms. Beltran went underfed and underpaid while her sponsor agency did nothing to assist her or protect her rights. Other au pairs, who experienced similar treatment, joined Ms. Beltran’s complaint in 2015. Colorado-based federal district court judge Christine Arguello certified the class of au pairs on February 2, 2018, allowing the lawsuit to proceed on behalf of current and former au pairs. The plaintiffs sued fifteen private sponsor agencies that the State Department authorized to administer the J-1 au pair program, including AuPairCare. Almost 100,000 au pairs will now share in a proposed $65.5 million settlement. The au pairs, mostly women who worked in American homes over the past decade, will be entitled to payment under the proposed settlement, which was filed with the Denver federal court on January 9, 2019.
This settlement was incredibly difficult for the au pairs to secure, and there is little assurance that the J-1 visa au pair program is going to change. As Professor Janie Chuang pointed out in her article, The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange, “the legal categorization of au pairs as cultural exchange participants is strategically used to sustain—and disguise—a government-created domestic worker program to provide flexible, in-home childcare for upper-middle-class families at below-market prices.” The J-1 visa program should be disbanded and a domestic worker program that “ensures decent working conditions and affords quality care” should be implemented. A domestic worker visa program that provides an opportunity to work toward citizenship and incorporates protections from various states’ domestic workers’ bills of rights would be a good start. American families need in-home assistance, and many migrant workers want to provide that care. However, without a domestic worker program that ensures workers’ rights and protections, the probability of labor exploitation remains high.
 Beltran, v. AuPairCare, Inc., 907 F.3d 1240, 1247 (10th Cir. 2018).
 22 U.S.C. § 62.31(c)-(h) (defining “sponsors” as agencies that the Department of State designates to select au pairs for the au pair exchange program and match with host families).
 Id. at 1246.
 Colleen Slevin, Au Pairs Win $65.5 Million Settlement in Denver Lawsuit, Associated Press (Jan. 9, 2019), https://www.apnews.com/23db59461513473c900f6695b08e0e96.
 Bridget Anderson, Doing the Dirty Work 23-24 (2000).
 Mutual Educational and Cultural Exchange Act of 1961, Pub. L. No. 87-256, 75 Stat. 527 (codified as amended at 22 U.S.C. §§ 2451-64 (1988)).
 8 U.S.C. §101(a)(15)(J).
 Id.; see also 22 C.F.R. § 62.4 (listing the categories of participant eligibility).
 22 C.F.R. § 62.31(j).
 29 U.S.C. § 216(b).
 Patricia Medige & Catherine Griebel Bowman, U.S. Anti-Trafficking Policy and the J-1 Visa Program: The State Department’s Challenge from Within, 7 Intercultural Hum. Rts. L. Rev. 103, 135 (2012).
 Chuang, WCL Research Paper No. 2012-46, at 39-41.
 Beltran v. Interexchange, Inc., No. 1:14-cv-03074 14-15 (D. Colo. filed Nov. 13, 2014).
 Id.at 15.
 Id.at 14.
 Beltran v. AuPairCare, Inc., 907 F.3d 1240, 1247 (10th Cir. 2018).
 Beltran, v. Interexchange, Inc., 2018 WL 1948687, No. 14–cv–03074–CMA–CBS (D. Colo. Feb. 2, 2018).
 See Beltran v. AuPairCare, Inc., 907 F.3d 1240, 1247 (10th Cir. 2018) (alleging the sponsors had violated antitrust laws, RICO, FLSA, federal and state minimum wage laws, and various other state laws).
 Slevin, supra note 3.
 Janie Chuang, The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange, 36 Harv. J.L. & Gender 269, 269 (2013).
 Id. at 341.
 See, e.g., National Domestic Workers Alliance,https://www.www.domesticworkers.org/#bor-states (last visited Jan. 29, 2019) (noting the following states have passed a domestic workers’ bill of rights: Oregon, Illinois, New York, California, Nevada, Connecticut, Massachusetts, and Hawaii); see also Domestic Workers’ Bill of Rights Act, 820 Ill. Comp. Stat. 182/5 (2017); Domestic Workers Bill of Rights, Mass. Gen. Lawsch. 149, § 190 (2015); Domestic Workers’ Protection Act, Or. Rev. Stat. § 659A.885 (2017).