By Celia Ampel, From Daily Business Review

Two Fort Lauderdale lawyers hope to help raise wages for au pairs across the country through a class-action suit.

Boies, Schiller & Flexner attorneys Sigrid S. McCawley and Lauren Fleischer Louis are part of a legal team alleging the 15 government-selected au pair sponsor organizations have colluded to keep wages at $4.35 an hour for thousands of au pairs.

The live-in nannies “are working a large number of hours,” McCawley said. “They’re not getting paid a federally mandated wage. And because they’re foreigners, they don’t know where to turn. They don’t have a voice, and they’re not aware of their rights.”

The price-fixing and minimum wage violation lawsuit seeks to overhaul the American au pair program, which brings 13,000 young adults into the U.S. every year on J-1 visas.

The suit was filed in November by Towards Justice, a Colorado-based nonprofit that focuses on workers’ rights, for lead plaintiff Johana Paola Beltran. The case is in U.S. District Court for Colorado under Judge Christine M. Arguello.

Au pairs are paid $195.75 a week for 45 hours of work, a minimum amount calculated by the U.S. Department of State in 2007. The figure is based on the federal minimum wage, minus a 40 percent credit for room and board, which host families provide.

But the plaintiffs contend the government has always said J-1 visa holders are entitled to minimum wage.

After the suit was filed, the State Department took down the 2007 notice and made public statements saying it expected sponsors to comply with federal and state minimum wage laws, said plaintiffs’ attorney Matthew Schwartz of Boies Schiller in New York.

Defendants seek to have the suit dismissed, saying the allegations fundamentally mischaracterize the au pair program as a work program, rather than a cultural exchange.

The program was designed to help increase understanding between the U.S. and foreign countries, wrote attorneys for au pair sponsor organization InterExchange in an April 20 motion to dismiss the complaint.

Because the program is under the immigration umbrella, federal law should preempt state law when it comes to au pairs, the motion continues.

The defense also holds that the program would become less unified if it were governed by state laws, and the au pair experience would begin to differ significantly from state to state.

InterExchange lead attorney Brooke Colaizzi of Sherman & Howard in Denver declined to comment on the pending litigation.

Plaintiffs’ attorneys said it’s inappropriate to deduct room and board costs from au pairs’ wages because credits are not permissible when certain provisions are required by law or are implemented for the employer’s benefit.

“You don’t get to pass on your business expense to your employees, whether it’s uniforms, tools of the trade or in certain circumstances, housing,” Schwartz said.

The state department has never directly pushed the sponsor organizations to make sure host families pay minimum wage, plaintiffs’ attorneys said.

“As with many things with the government, it often takes a private citizen raising the issue before it gets addressed adequately,” McCawley said. “We needed to bring this lawsuit to highlight the problems that are underlying the program so that we can effectuate some change.”

The plaintiffs are represented by Louis, McCawley and Schwartz, as well as Peter Skinner and Randall Jackson of Boies Schiller in New York and Alexander Hood of Towards Justice in Denver.

The 15 sponsor organizations’ attorneys are from the firms Sherman & Howard, Kelly & Walker, Greenberg Traurig, Brownstein Hyatt Farber Schreck, Holland & Hart, Gordon & Rees, Jester Gibson & Moore, Wheeler Trigg O’Donnell, Fisher & Phillips, Snell & Wilmer and Dufford & Brown in Denver; Rietz Law Firm in Dillon, Colorado; Lawson & Weitzen in Boston and Bogdan Enica in St. Petersburg.

IMAGE: Sigrid McCawley and Lauren Fleischer – Credit Louis Melanie Bell

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