United States District Court, D. Massachusetts
CULTURAL CARE, INC., ERIN CAPRON, and JEFFREY PENEDO, Plaintiffs,
OFFICE OF THE ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS and MAURA T. HEALEY, Defendants.
MEMORANDUM AND ORDER
Talwani United States District Judge
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
Complaint [#1] that the application and enforcement
of the domestic workers laws to the au pair program
is preempted by the Fulbright-Hays Act, Pub. L. No. 87-256
§ 109, 75 Stat. 527 (1961), codified at 22 U.S.C. §
2451 et seq., and federal regulations. Counts III and IV
allege further that the domestic workers laws are preempted
by the Commerce Clause, Article 1, Section 8, Clause 3 of the
United States Constitution. The Defendants, the Office of the
Attorney General of the Commonwealth of Massachusetts and
Attorney General Maura Healey (collectively, “the
Attorney General”), have filed a Motion to
Dismiss [#19], asserting that Counts I and II should be
dismissed under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, and that Counts III and IV should be dismissed
under Rules 12(b)(1) and 12(b)(6). For the reasons set forth
below, the motion is ALLOWED.
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.
See Trans-Spec Truck Serv., Inc. v. Caterpillar,
Inc., 524 F.3d 315, 320 (1st Cir. 2008) (Rule 12(b)(6));
Blum v. Holder, 744 F.3d 790, 795 (1st Cir. 2014)
(Rule 12(b)(1)). To survive a motion to dismiss for failure
to state a claim, a complaint must contain sufficient facts
“to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). The court “draw[s] the facts primarily
from the complaint,” and “may supplement those
factual allegations by examining ‘documents
incorporated by reference into the complaint, matters of
public record, and facts susceptible to judicial
notice.’” Butler v. Balolia, 736 F.3d
609, 611 (1st Cir. 2013) (quoting Haley v. City of
Bos., 657 F.3d 39, 46 (1st Cir. 2011)).
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.” John Doe No. 1 v. Reed, 561
U.S. 186, 194 (2010). “A facial challenge to a
legislative Act is . . . the most difficult challenge to
mount successfully, since the challenger[s] must establish
that no set of circumstances exists under which the Act would
be valid.” United States v. Salerno, 481 U.S.
739, 745 (1987).
Overview of Federal Statutes and Regulations
au pair program is a subset of the J-1 Exchange
Visitor Visa Program. To qualify for J-visa status, a person
an alien having a residence in a foreign country which he has
no intention of abandoning who is a bona fide student,
scholar, trainee, teacher, professor, research assistant,
specialist, or leader in a field of specialized knowledge or
skill, or other person of similar description, who is coming
temporarily to the United States as a participant in a
program . . . for the purpose of teaching, instructing or
lecturing, studying, observing, conducting research,
consulting, demonstrating special skills, or receiving
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); id. § 62.1.
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. Id. § 62.31(j)(2). They “[a]re
compensated at a weekly rate based upon 45 hours of child
care services a week and paid in conformance with the
requirements of the Fair Labor Standards Act
[(“FLSA”), 29 U.S.C. § 201 et seq,] as
interpreted and implemented by the United States Department
of Labor.” 22 C.F.R. § 62.31(j)(1). They further
receive at least one and a half days off each week and one
full weekend off each month.
§ 62.31(j)(3). Designated sponsors oversee the au
pair programs and provide support to the au
pairs and host families. Id. § 62.2;
see also id. § 62.31(c). “Sponsors shall
require that au pair participants . . . [a]re
compensated at a weekly rate based upon 45 hours per week and
paid in conformance with the requirements of the [FLSA] as
interpreted and implemented by the United States Department
of Labor.” Id. § 514(j).
Overview of Massachusetts Regulations
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);
see also Mass. Gen. Laws ch. 149, § 190(o)
(authorizing Attorney General to “promulgate rules and
regulations necessary for enforcement”).
domestic workers laws designate protections for
“individual[s] or employee[s] who [are] paid by an
employer[] to perform work of a domestic nature
within a household including . . . nanny services.”
Mass. Gen. Laws ch. 149, § 190(a). Among these
protections, employers may deduct no more than $35.00 for
lodging each week, 940 Mass. Code Regs. § 32.03(5)(c),
and no more than $1.25 for breakfast, $2.25 for lunch, and
$2.25 for dinner for meals actually provided, id.
§ 32.03(5)(b), and only when the domestic workers select
the lodging and meals “voluntarily and freely,”
id. §§ 32.03(5)(b)-(c). The domestic
workers laws clarify that domestic workers who work more than
40 hours per week are entitled to overtime pay for those
hours. Id. § 32.03(3). “When
a domestic worker is required to be on duty for a period of
24 consecutive hours or more, all meal periods, rest periods,
and sleep periods shall constitute working time, unless
otherwise provided by written agreement.” Id.
§ 32.03(2). The domestic workers laws further require
those who employ domestic workers to keep records of wages
paid and hours worked. Mass. Gen. Laws. ch. 149, §
190(1); 940 Mass. Code Regs. § 32.04(2).
Preemption by the Fulbright-Hays Act
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.” See Arizona v. United States, 567
U.S. 387, 399 (2012). Congress may include explicit statutory
language signaling its intent to preempt state
see id., although such explicit statutory preemption
is not at issue here as neither the Fulbright-Hays Act nor
the federal regulations expressly indicate that states are
barred from supplementing these provisions.
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. See
id. at 399-400. State law is impliedly preempted when
Congress intends to occupy the field (field preemption) or
when it conflicts with federal law (conflict preemption).
Id. Regardless of the type of preemption at issue,
“the ultimate touchstone” of the court’s
inquiry is congressional purpose. Wyeth v. Levine,
555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v.
Lohr, 518 U.S. 470, 485 (1996)).
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.” Id.
(quoting Medtronic, Inc., 518 U.S. at 485) (internal
quotation marks omitted)). “The States traditionally
have had great latitude under their police powers to
legislate as ‘to the protection of the lives, limbs,
health, comfort, and quiet of all persons.’”
Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724,
756 (1985) (quoting Slaughter-House Cases, 83 U.S.
36, 62 (1872)). “States possess broad authority under
their police powers to regulate the employment relationship
to protect workers within the State,” including
“minimum and other wage laws.” Id.
(quoting De Canas v. Bica, 424 U.S. 351, 356
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.” Arizona, 567
U.S. at 399. Even when no conflict exists between state and
federal law, “[t]he intent to displace state law
altogether can be inferred from a framework of regulation
‘so pervasive . . . that Congress left no room for the
States to supplement it’ or where there is a
‘federal interest . . . so dominant that the federal
system will be assumed to preclude enforcement of state laws
on the same subject.’” Id. (quoting
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947)). This is determined by considering the totality of
the circumstances. Bldg. & Constr. Trades Council of
Metro. Dist. v. Associated Builders & Contractors of
Mass./R.I., Inc., 507 U.S. 218, 224 (1993).
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.
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
au pair program has its roots in the Fulbright-Hays
Act, enacted by Congress in 1961, which created the J-Visa
Exchange Visitor Program. Id. § 109. The
Fulbright-Hays Act explicitly contemplated that some J-visa
programs would include an employment component. Id.
(permitting programs “for the purpose of teaching,
instructing or lecturing, studying, observing,