First Circuit Rules That Massachusetts State Wage Act Not Preempted by Federal Law

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In the recent case of Capron v. Office of Attorney Gen. of Mass., the federal First Circuit Court of Appeals issued an interesting ruling regarding the intersection of federal and state law, affirming a U.S. District Court order of dismissal providing that state wage and hour laws fully applied to foreign nationals employed as "au pairs" in Massachusetts on special visa programs promulgated by the U.S. State Department. 

The State Department administers a federal exchange program known as the Au Pair Program pursuant to codified federal regulations, in which foreign nationals may obtain special visas and be placed with host families in the U.S. to provide childcare services while also pursuing educational opportunities.

A State Department-approved private placement agency and two host families brought a federal lawsuit against the Attorney General of Massachusetts, alleging that the federal Au Pair Program "impliedly preempts Massachusetts from requiring host families to comply with its wage and hour laws as employers of the visa holders who provide them childcare services through that program." In particular, plaintiffs sought declaratory and injunctive relief to prevent application of the Massachusetts Fair Wage Law and Domestic Workers Bill of Rights Act, which require a minimum wage of $12 per hour and time-and-a-half payment for all hours over 40 worked within a given week.

The First Circuit Court of Appeals, in reviewing the U.S. District Court's order granting the Attorney General's motion to dismiss de novo, affirmed, rejecting plaintiffs' assertion that the State Department regulations impliedly pre-empted the field of Massachusetts state hourly and wage law. The Court explained: "The plaintiffs point to the fact that the Au Pair Program implicates the federal government's power over foreign affairs, both with respect to immigration and foreign relations. The plaintiffs contend that this feature of the Au Pair Program . . . requires us to presume an intent to preempt the relevant field. But, we do not agree." The Court continued: "It is hardly evident that a federal foreign affairs interest in creating a 'friendly' and 'cooperative' spirit with other nations is advanced by a program of cultural exchange that, by design, would authorize foreign nationals to be paid less than Americans performing similar work."

The Court of Appeals also rejected plaintiffs' contention that the operation of Massachusetts state law is a such an obstacle to the accomplishment of the full purposes and objectives of the federal Au Pair Program that state law must be impliedly preempted. Instead, the Court of Appeals held that the federal regulations in the Au Pair Program setting certain baselines for compensation of au pairs served only as a floor, and not as a ceiling on the compensation that could be offered within a particular jurisdiction.

Capron makes clear that all au pair host families must comply with the Massachusetts minimum wage and other Massachusetts state wage and hour laws. The opinion is also stark reminder that plaintiffs or employers seeking an order that federal law has implicitly pre-empted inopportune state law face a heavy burden to demonstrate that such state law has been pre-empted. For more information on Fitch Law Partners' international, business, and employment litigation practices, please visit our website. 

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