More than three years into a lawsuit challenging the pay structure of the U.S. au pair program, the plaintiffs reached a major milestone: getting class certification.
The lawsuit seeks to get justice for participants in the au pair program. According to plaintiffs’ attorneys, many au pairs came to the U.S. in search of international experience and a guaranteed job but instead found themselves in a situation where they were paid below minimum wage.
Federal Judge Christine Arguello on Feb. 2 granted class certification in the lawsuit. And with the case now a class action, plaintiffs’ attorneys say they have the ability to bring about greater changes rather than recovering lost wages.
The lawsuit, filed in 2015 in U.S. District Court for the District of Colorado, claims that 15 sponsors of the U.S. au pair program participated in a price fixing scheme that allows them to set wages that work out to roughly $4.35 an hour — well below the federal minimum wage — while claiming that the $195.75 per week wage was set by the U.S. government.
Since the case was filed, it has become a collective action on a Fair Labor Standards Act claim and recently a class action on several other national and state wage and hour claims.
In total, the plaintiffs are making 10 claims against the defendant organizations, including under the Sherman Antitrust Act, Racketeer Influenced and Corrupt Organizations Act, FLSA and several other state laws.
The class action certification created 18 different classes with nearly 100,000 current and former au pairs pursuing antitrust claims against 15 of the 16 designated au pair sponsor organizations.
The court granted certification for all but one class designation. The only class denied was for state claims outside the states in which the plaintiffs identified class members. The plaintiffs plan to appeal that decision.
Classes were certified for a national antitrust class and a national RICO class as well as for all au pairs who participated in unpaid training or who were employed by the sponsor organizations in Colorado, Florida, Illinois, Maryland, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Texas, Utah and Virginia.
Au pairs who participate in the program come to the U.S. on temporary work visas. The sponsor organizations are authorized by the government to place au pairs with host families in the country. According to the lawsuit, the organizations promise a set wage that they say is set by the government and falsely told au pairs they had opportunities to earn more.
Many class members are former au pairs who are now outside of the U.S. after concluding their time as au pairs and having their J-1 visas expire.
The fact that many class members are outside of the U.S. is why it was essential to obtain class certification, according to plaintiffs’ attorney Nina DiSalvo, who is also executive director of Towards Justice, a nonprofit legal organization focused on handling claims of wage theft.
Towards Justice represents the plaintiffs along with attorneys from Boies Schiller Flexner.
“The importance of this most recent class certification order is that it is demonstrating how important this class action mechanism is for seeking justice for marginalized workers,” DiSalvo said. “It’s tremendously difficult for these mostly young women to seek justice in U.S. courts without this mechanism.”
Because au pairs’ visa status is tied to their work, au pairs are often afraid of complaining during their employment because of the risk of losing their employment and their visa. And for those who finish the program, they’re left without options to pursue any claims once they’re outside the U.S.
“A variety of things about the nature of the au pair program create vulnerabilities,” DiSalvo said. “For most au pairs, pursuing justice is not possible absent this class action.”
In addition to the order certifying the classes, Arguello also ordered the parties to confer regarding class notice procedures and submit a notice and plan to the court within 10 days of the order. Going forward, the plaintiffs are seeking summary judgment and conducting depositions all over the world.
“As we go through these opt-in depositions, the common theme is that we’re hearing the au pairs are not primarily joining the case for monetary recovery,” said Sean Rodriguez, a partner Boies Schiller. “We hear over and over again is that they don’t want future young people to have unfair experiences. They want the good things [of the program] without the exploitive labor practices.”
—Tony Flesor