554 F.Supp.3d 309
D. Mass.2021Background
- Four foreign-nation au pairs (Plaintiffs) sponsored by Cultural Care, Inc. allege underpayment, lack of wage statements/time records, unpaid training, and regulatory noncompliance while placed with U.S. host families.
- Plaintiffs bring 14 counts: state-law class claims for wage/overtime/wage-statement violations (CA, NY, NJ, IL), FLSA collective claims (minimum wage and overtime), and a multi-state consumer-deceptive-practices class claim (including CT and WA).
- Cultural Care is a Department of State–designated au pair sponsor; regulations limit hours, require stipend guidance (historically $195.75/week), mandate monitoring/reporting, and impose screening/training duties.
- Plaintiffs allege Cultural Care exerts significant control (placement, termination/reassignment, host-family suitability, stipend instructions) and receives payments from host families; it does not provide pay statements or time records.
- Cultural Care moved to dismiss (Rule 12(b)(1) and 12(b)(6)), asserting derivative sovereign immunity, federal preemption of state wage claims, lack of employer status, and insufficiency of the deceptive-practices allegations.
- Court decision: Motion DENIED as to Counts 1–13; Count 14 (consumer/deceptive practices) GRANTED in part (claims under Connecticut and Washington dismissed) and DENIED in part as to the remaining jurisdictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Derivative sovereign immunity | Cultural Care is not shielded; plaintiffs may sue sponsor for statutory/state-law claims | Sponsor is acting as federal designee and thus entitled to derivative sovereign immunity | Denied — Cultural Care not entitled to derivative sovereign immunity (not a government contractor performing expressly directed government tasks) |
| Federal preemption of state wage and hour laws | State wage and hour laws apply to sponsors and host families; no preemption | Federal regulations (au pair program) occupy the field or conflict with state laws, displacing state regulation | Denied — neither field nor conflict preemption shown; First Circuit precedent and statutory/regulatory history do not demonstrate preemptive intent |
| Whether Cultural Care "employs" au pairs | Plaintiffs: Cultural Care exercises sufficient control (placement, termination, stipend guidance, screening, meetings) to be an employer | Cultural Care: merely implements federal regulations and thus is not an employer under wage laws | Denied — allegations sufficiently plausibly allege employer status at motion-to-dismiss stage given alleged control beyond mere regulatory compliance |
| Deceptive/consumer-practices claims (Count 14) and standing for CT/WA | Plaintiffs assert consumer deception across several states and seek class relief | Cultural Care: pleading too vague; no named plaintiffs worked in CT or WA so lack standing; insufficient specificity | Granted in part — CT and WA elements dismissed for lack of standing/allegations; remaining state consumer claims survive dismissal |
Key Cases Cited
- Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940) (establishes doctrine of derivative sovereign immunity for private actors carrying out explicit government directives)
- Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016) (limitations on applying Yearsley-style immunity)
- Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640 (4th Cir. 2018) (discusses contractor immunity when performing as expressly directed by government)
- Capron v. Off. of Att’y Gen. of Massachusetts, 944 F.3d 9 (1st Cir. 2019) (analyzes application of state wage laws to au pair program and rejects preemption as to host families)
- Arizona v. United States, 567 U.S. 387 (2012) (field preemption framework)
- Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141 (1982) (federal regulations can preempt state law only when within agency authority)
- Hines v. Davidowitz, 312 U.S. 52 (1941) (conflict preemption principles)
- Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) (high threshold for conflict preemption; state law preemption requires clear conflict)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards and reasonable inferences)