INDIRA TALWANI, District Judge.
This action challenges the application and enforcement of the Massachusetts Domestic Workers Bill of Rights, Mass. Gen. Laws ch. 149, § 190, and its accompanying regulations codified at 940 Mass. Code Regs. § 32 (collectively, "domestic workers laws"), to foreign nationals participating in the federal au pair program under the J-1 Exchange Visitor Visa Program. Compl. ¶¶ 29, 33 [#1]. Plaintiff Cultural Care, Inc., is a sponsor under the federal au pair program, and Plaintiffs Erin Capron and Jeffrey Penedo participate as host families in the au pair program. Plaintiffs (collectively, "Cultural Care") allege in Counts I and II of the
In ruling on a motion to dismiss, whether for failure to state a claim or lack of standing, the court must accept the plaintiffs' well-pleaded factual allegations and draw all reasonable inferences in the plaintiffs' favor.
When, as here, the "plaintiffs' claim and the relief that would follow . . . reach beyond the particular circumstances of [those] plaintiffs[,] [t]hey must . . . satisfy . . . standards for a facial challenge to the extent of that reach."
The au pair program is a subset of the J-1 Exchange Visitor Visa Program. To qualify for J-visa status, a person must be
8 U.S.C. § 1101(a)(15)(J). Under the au pair program, foreign nationals between the ages of 18 and 26 are permitted to travel to the United States and reside for no more than one year with an American host family, where they help care for the family's children and complete coursework at a local college or university. 22 C.F.R. § 62.31(a), (c)(1), (d)(1);
Au pairs may provide no more than 10 hours of child care each day and no more than 45 hours of child care in a given week.
In 2014, Massachusetts enacted "An Act Establishing the Domestic Workers Bill of Rights." 2014 Mass. Acts ch. 148, § 3. The Act is now codified at Mass. Gen. Laws ch. 149, §§ 190-191 ("Domestic Workers Bill of Rights Act"). On August 28, 2015, the Attorney General propounded regulations "to interpret, enforce, and effectuate the purposes of the Domestic Workers Bill of Rights Act." 940 Mass. Code Regs. § 32.01(1);
The domestic workers laws designate protections for "individual[s] or employee[s] who [are] paid by an employer[
The doctrine of federal preemption traces its roots to Article VI, Clause 2 of the United States Constitution, which provides that federal law "shall be the supreme Law of the Land."
State law also is preempted, however, where the structure and purpose of the federal legal scheme at issue indicate a clear, albeit implicit, intent to preempt state law.
"[I]n all [preemption] cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . [courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."
In cases of field preemption, "the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance."
Cultural Care asserts that the federal government created the au pair program as part of its foreign relations policy, and that, in passing the Fulbright-Hays Act, Congress intended to occupy the field of cultural exchange visitors. Cultural Care asserts that "Congress was clear in passing the Fulbright-Hays Act that cultural exchange visitors would enter the United States, not as . . . employees, but as visitors in furtherance of mutual understanding and better relations with other countries." Pl.'s Opp. 14 [#21] (citing 22 U.S.C. § 2451 and H.R. Rep. No. 87-1094 at 16 (1961)). Cultural Care posits that federal regulation of that field of cultural exchange visitors is so pervasive that no room is left for additional state regulation.
Cultural Care's starting premise is incorrect. While the statute and legislative history do make clear that the purpose of the cultural exchange visitors program is the furtherance of mutual understanding and better relations between people of the United States and other countries, Pub. L. No. 87-256 § 101, 75 Stat. 527, they do not support the claim that these visitors would not also enter the United States as employees.
The au pair program has its roots in the Fulbright-Hays Act, enacted by Congress in 1961, which created the J-Visa Exchange Visitor Program.
In 1988, after the United States Information Agency ("USIA") (the agency which oversaw the J-visa programs) piloted an "au pair" program, Congress designated funds to continue it. Act of Oct. 1, 1988, Pub. L. No. 100-461, 102 Stat. 2268 § 555 (1988). Congress did so despite USIA's concerns that the program was inconsistent with the USIA's authority under the Fulbright-Hays Act. Exchange Visitor Program, 59 Fed. Reg. 64,296 (Dec. 14, 1994) (supplementary information), Pls.' Opp. Ex. D [#21-4]; S. 2757, 100th Cong. § 301 (1988), Pl.'s Opp. Ex. B [#21-2] (incorporated in Act of Oct. 1, 1988, Pub. L. No. 100-461, 102 Stat. 2268 § 555 (1988), Pl.'s Opp. Ex. C [#21-3]). That authorization was accompanied by the commissioning of a report on whether participants in the J-visa programs, including au pairs, were engaging in activities consistent with those authorized by statute. Act of Oct. 1, 1988, Pub. L. No. 100-461, 102 Stat. 2268 § 555 (1988).
The General Accounting Office issued the congressionally-commissioned report in February 1990, determining that the au pair program was inconsistent with the intent of the Fulbright-Hays Act.
Congress continued the program again in 1994 but also directed the USIA to promulgate regulations governing the au pair program. Act of Oct. 25, 1994, Pub. L. No. 103-415, 108 Stat. 4302 § 1(v) (1994). As part of the promulgation process, and in response to criticism "that the program displaces American workers and amounts to no more than the import of cheap foreign labor in the guise of an educational and cultural exchange program," the USIA confronted the question of whether au pairs are employees subject to the FLSA, 29 U.S.C. § 202 et seq. 60 Fed. Reg. 8550. In issuing the interim rule, the USIA concluded that "[a]n au pair living with a host family presents an analogous relationship to that contemplated in 29 C.F.R. § 552.100," the Department of Labor regulations governing domestic service employees, since amended. 59 Fed. Reg. 64,298. Before issuing the final rule, the USIA sought further guidance from the Department of Labor, which concluded that "an employment relationship is established." 60 Fed. Reg. 8550. The USIA deferred to the Department of Labor on this point. 60 Fed. Reg. 8551 (citing
After Congress passed legislation in 1996 to amend the FLSA to increase the federal minimum wage incrementally over the next year, Minimum Wage Increase Act of 1996, Pub. L. No. 104-188 § 2104, 110 Stat. 1928 (Aug. 20, 1996), the USIA amended its regulations with respect to compensation rates "to ensure that there is no future confusion regarding the payment of minimum wage." 62 Fed. Reg. 34,633. Under the regulations, "[s]ponsors shall require that au pair participants . . . [a]re . . . paid in conformance with the requirements of the [FLSA] as interpreted and implemented by the United States Department of Labor." Exchange Visitor Program, 62 Fed. 34,634 (June 27, 1997) (now codified at 22 C.F.R. § 62.31(j)(1)).
Congress, in turn, did not permanently authorize the au pair program until after USIA so amended its regulations. Only then, in October 1997, did Congress permanently authorize the au pair program. Act of Oct. 1., 1997, Pub. L. No. 105-48, 111 Stat. 1165 (1997).
In sum, the federal statute and regulations concern not just cultural exchange, but employment. The question then is not whether the cultural exchange aims of the legislation, but whether the federal legislation as a whole — with both its cultural exchange component and its employment component — so occupy the field as to preempt state labor protections.
Nothing in the Fulbright-Hays Act or the federal regulations suggests that states may not supplement federal protections provided to au pairs or that the goals of cultural exchange would be thwarted by additional labor protections by the states. To the contrary, the federal regulations mandate compliance with the requirements of the FLSA. 22 C.F.R. § 62.31(j)(1). The FLSA, in turn, allows states to impose more stringent protections than those offered at the federal level. 29 U.S.C. § 218 ("No provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum workweek established under this chapter . . . ."). Allowing additional state protections is entirely consistent with the type of police powers traditionally held by the states.
Congress abolished the USIA effective in 1999, and the federal cultural exchange programs were transferred to the State Department. Foreign Affairs Reform & Restructuring Act of 1998, Pub. L. No. 105-277, div. G, §§ 1301, 1311-13, 112 Stat. 2681, 2681-776 (1999). The program's current home at the State Department, and before that, at the USIA, is of no consequence. Although the J-visa status is rooted in the goals of cultural exchange, no ambiguity exists as to whether the au pair program also has an employment component that must comply with federal labor laws.
Cultural Care relies in part on a discussion of uniformity of permissible credits for food and lodging for au pairs in the 1994 and 1995 rules. Such reliance is misplaced. When promulgating the initial regulations, the USIA noted a "programmatic need for a uniform wage" to "alleviate the family's obligation to maintain records." 60 Fed. Reg. 8551. The formula the USIA relied on in 1994 and 1995 (which prompted the discussion of uniformity) was abandoned in 1997, however, giving way to the current language that no longer requires uniformity and instead requires au pairs to be "paid in conformance with the requirements of the [FLSA]." 22 C.F.R. § 62.31(j)(1).
Cultural Care's reliance on
For these reasons, even when drawing reasonable inferences in its favor, Cultural Care has failed to allege facts sufficient to demonstrate that federal regulation of the au pair program is so pervasive that no room remains for supplementation by the states. The field preemption claim fails.
Cultural Care next argues that the domestic workers laws must yield due to conflict preemption. Conflict preemption may occur "where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
"Conflict preemption is particularly difficult to show when the most that can be said about the state law is that the direction in which state law pushes behavior is in general tension with broad or abstract goals that may be attributed to federal laws."
Cultural Care alleges that the domestic workers laws interfere with the au pair program's regulatory scheme by imposing different and additional requirements that interfere with the federal government's foreign policy goals. Cultural Care alleges multiple areas of conflict between the domestic workers laws and federal law relating to au pairs.
First, Cultural Care alleges that the definition of a "domestic worker" under the domestic workers laws as "an individual who performs services for an employer for wage, remuneration, or other compensation . . . to provide any service of a domestic nature within a household," 940 Mass. Code Regs. § 32.02, contradicts the definition of au pairs who are "exchange visitors." Compl. ¶ 31(a) [#1]. However, because the federal regulations recognize that the au pair program contains an employment component, no conflict exists.
Second, Cultural Care alleges conflict in the provision clarifying that domestic workers who work more than 40 hours each week are entitled to overtime compensation, whereas au pairs do not receive overtime, may not perform more than 45 hours of child care services each week, and are paid a flat rate. Compl. ¶ 31(b) [#1]. However, the federal protections merely set a floor (based on federal minimum wage and as assumed number of hours) to which states may provide additional benefits.
Third, because the minimum compensation for au pairs is calculated without regard to actual hours worked, Cultural Care alleges conflict in the requirement that mealtime, rest, and sleep periods constitute working time when domestic workers are required to be on duty for at least 24 consecutive hours. Compl. ¶ 31(c) [#1];
Fourth, Cultural Care alleges that the deductions an employer may take under Massachusetts law for lodging and meal costs actually paid conflict with deductions permitted under federal regulations for the au pair program. Compl. ¶ 31(d) [#1]. Cultural Care alleges that the federal program calculates the weekly compensation on the basis of 45 hours multiplied by the minimum wage, minus 40% for room and board.
In support of its allegation that deductions under the domestic workers laws conflict with federal regulations, Cultural Care further argues that the state limits on deductions for meals and lodging would distort the cultural exchange goals of the program. Any concern as to lodging is more theoretical than practical. The au pair has accepted the host family's offer of lodging by seeking a J-visa as an au pair who would reside with a host family. If the au pair sought to move out of the home, he or she would presumably be terminated from the au pair program. As to meals, a "cultural exchange" does not mandate that an au pair eat all meals with his or her host family, and there is nothing in the record to suggest such a culturally-limiting goal of the au pair program.
Nor is Cultural Care's concern that the regulations would emphasize strategy and negotiation over cultural exchange well founded. Cultural Care suggests that Massachusetts' requirements would result in the prospective au pair finding herself or himself haggling over room and board credits with the prospective host family prior to arriving in the United States. But while Massachusetts' limitations on credits for lodging and meals may result in a higher net wage for the au pair, they do not pose an obstacle to the accomplishment and execution of the full purposes and objectives of the au pair program.
Fifth, Cultural Care alleges that "the Massachusetts minimum wage, which applies under the [domestic workers laws]" so exceeds the federal minimum wage on which the minimum au pair compensation is based that it would make the au pair program economically infeasible for many host families, including Plaintiffs Capron and Penedo. Compl. ¶ 31(e) [#1];
Sixth, Cultural Care alleges that the domestic workers laws would impose recordkeeping requirements on host families, not mandated under the au pair program.
Cultural Care further argues that the Fulbright-Hays Act and the federal regulations create "a central, uniform process" for oversight of the au pair program, which would be frustrated if the program were subject to varying state or local rules. Pl.'s Opp. 21 [#21]. As discussed above, Cultural Care's emphasis on uniformity is unavailing. Further, the references to uniformity in the 1994 and 1995 rules do not lend themselves to the conclusion that lack of uniformity would pose anything beyond mere tension between the federal and state laws, not an actual conflict.
Cultural Care also argues that the domestic workers laws would frustrate the purposes of the Fulbright-Hays Act because au pairs would receive more benefits than United States citizens employed as child care providers. It states that, unlike American child care workers, au pairs also would receive educational benefits, a guarantee of room and board, limits on the number of hours they could work, and compensation even if they do not provide child care at all that week. But au pairs already receive these additional benefits under federal regulations without frustrating the purposes of the Fulbright-Hays Act. Indeed, Congress may well have concluded that cultural exchange would be furthered by better working conditions for au pairs and that domestic challenges to the cultural exchange program would be better resolved if au pairs were not viewed as a cheap source of labor. Ensuring that au pairs are not paid less than other child care providers in the Commonwealth is consistent, not inconsistent, with these purposes.
Cultural Care also contends that regarding au pairs as employees would conflict with federal regulations requiring foreign nationals seeking a work visa to show that their coveted position cannot be filled by domestic labor.
Accordingly, Cultural Care has failed to sufficiently allege that conflict preemption applies to the domestic workers laws.
As a second ground for preemption, Cultural Care alleges that the domestic workers laws violate the Commerce Clause. The claim fails whether on a motion for dismiss for lack of standing or for failure to state a claim, because Cultural Care has failed to adequately allege that the domestic workers laws discriminate against or impose an undue burden on either interstate or foreign commerce.
The Commerce Clause authorizes Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art I, § 8, cl. 3. Within the Commerce Clause, courts have recognized an implied prohibition on state and local governments from enacting legislation "inimical to the national commerce [even] where Congress has not acted[,]" known as the dormant Commerce Clause.
With respect to interstate commerce, the dormant Commerce Clause bars "state and local governments from impeding the free flow of goods from one state to another," regardless of whether Congress has affirmatively acted.
Because they address only domestic workers working within the state's borders and do not differentiate between those hired from within Massachusetts and outside the state, the domestic workers laws do not discriminate on their face against interstate commerce in either purpose or effect.
Cultural Care alleges that the domestic workers laws unduly burden interstate commerce and discriminate against it
Compl. ¶ 48 [#1].
At the outset, Cultural Care's role as a "Massachusetts-based [p]rogram [s]ponsor" undercuts any allegation that the domestic workers laws impose more arduous burdens on interstate commerce than they do on intrastate commerce, or discriminate against commercial activity by out-of-state residents in favor of that of its own residents.
Cultural Care asserted at oral argument that, as a sponsor organization which has cornered the market in Massachusetts, it would be burdened on the national stage when competing with other sponsor organizations that operate primarily in states without similar protections for au pairs. However, such competitive disadvantage at the national level does not fall within the scope of cognizable harms protected by the dormant Commerce Cause.
In contrast, the domestic workers laws offer substantial putative local benefits in the forms of protections for a class of workers vulnerable to exploitation and clearer guidance to their employers. For these reasons, the putative local benefits greatly outweigh any burden that the domestic workers laws would have on interstate commerce, and Cultural Care's dormant Commerce Clause claim fails.
Cultural Care's claim that the domestic workers laws unduly burden and discriminate against foreign commerce fares no better. "Like the dormant domestic Commerce Clause, . . . the Foreign Commerce Clause restricts protectionist policies [and] also restrains the states from excessive interference in foreign affairs."
Cultural Care alleges that the domestic workers laws would result in decreased availability of au pair positions available for foreign nationals and an increased likelihood that prospective host families would hire domestic workers rather than foreign au pairs. Compl. ¶¶ 49, 50 [#1]. It further argues that the domestic workers laws would prevent Congress from speaking with one voice with respect to the au pair program.
Since the domestic workers laws do not facially discriminate against foreign commerce and their effects would be incidental, the
Contrary to Cultural Care's suggestion, this is not a circumstance in which the state is "add[ing] . . . [or] tak[ing] from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States."
Consequently, Cultural Care has not sufficiently alleged violation of the Foreign Commerce Clause.
For the foregoing reasons, the Attorney General's
IT IS SO ORDERED.