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Au Pairs Can Advertise Proposed Wage Collective

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A federal judge rules that attorneys for au pairs can advertise their unpaid overtime wages case as per their First Amendment rights.

New York, NYA Massachusetts federal judge has given attorneys the green light to advertise their plaintiffs’ proposed wage collective, to the chagrin of Cultural Care Inc. The au pairs are seeking unpaid overtime wages from the agency. Culture Care, which claims to be the leading au pair agency and has been placing au pairs with American families for 30 years, attempted to strike almost 2,000 opt-in forms signed by au pairs by claiming that ads on the website the plaintiffs’ attorneys created were “improper and premature”.

Citing the First Amendment, Judge Indira Talwani ruled that there were no rules prohibiting the solicitation of opt-in forms prior to court certification of a worker collective, Law360 reported. The judge said the website was “one-sided” (of course it is, plaintiffs’ attorneys are simply doing their job) but not misleading. Cultural Care’s bid to vacate the opt-in forms was rejected and instead, Judge Talwani conditionally certified a worker collective of all Culture Care-sponsored au pairs dating to 2017.

Through the J-1 visa, known as the au pair program, foreign workers are sponsored by a family for whom they perform child care work in return for a stipend and room and board. Culture Care Cultural Care Inc. argued that it is entitled to derivative immunity because the U.S. Department of State allowed it to delegate payment responsibilities to the families hosting the au pairs, arguing that the panel didn't take that fact into consideration.

In April, a three-judge panel affirmed a Massachusetts federal court's decision finding that Cultural Care couldn't escape the au pairs' lawsuit. It determined that the agency didn't prove the government allowed it to underpay the au pairs and couldn't claim immunity under the U.S. Supreme Court's  opinion in Yearsley v. W.A. Ross Construction Company  - dating back to 1940. Cultural Care argued that the panel was mistaken, and the full court needs to correct, as it overlooked the government's regulations and documents directing the agency to inform the host families of the federal minimum wage of at least $195.75 per week.

Morales Posada et al. v. Cultural Care Inc.

In October 2020, au pair Morales Posada filed a complaint against her employer Culture Care Inc., for the following violations of various state and federal wage and hour laws:
  • Failure to pay minimum wages as per New York's minimum wage requirements.
  • Failure to pay overtime wages.
  • Failure to provide proper wage statements containing required information about pay, hours and deductions.
  • Failure to inform host families that the stipend Culture Care tells them to pay au pairs results in the above violations.

About 50 au pairs declared that they regularly worked more than 40 hours per week without time-and-a-half overtime compensation or any pay for training (“Receive a minimum of 32 hours of childcare training before you start,” as per the U.S. Department of State – Bureau of Consular Affairs)

According to court documents, this lawsuit is filed as a putative collective action under the federal Fair Labor Standards Act (FLSA), a wage and hour class action under California, Illinois, New Jersey, and New York state laws, and a deceptive trade practices class action under New York, Illinois, New Jersey, Connecticut, and Washington state laws. The action seeks to recover for au pairs their unpaid wages within the applicable statutes of limitation, an award of liquidated (double) damages, and other penalties and interest.

The case is Morales Posada v Cultural Care, Inc, Case No. 1:20-cv-11862


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