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Cultural Care, Inc. v. Office of Attorney General of Commonwealth of Massachusetts

United States District Court, D. Massachusetts

August 1, 2017



          Indira Talwani United States 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 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.,[1] 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.[2] 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.

         I. Standard

         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. 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)).

         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.” 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).

         II. Background

         A. Overview of Federal Statutes and Regulations

         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

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 training.

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.

         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. 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.

         Id. § 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).

         B. Overview of Massachusetts Regulations

          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); see also Mass. Gen. Laws ch. 149, § 190(o) (authorizing Attorney General to “promulgate rules and regulations necessary for enforcement”).

         The domestic workers laws designate protections for “individual[s] or employee[s] who [are] paid by an employer[[3]] 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.[4] 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).

         III. Discussion

         A. Preemption by the Fulbright-Hays Act

         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.” See Arizona v. United States, 567 U.S. 387, 399 (2012). Congress may include explicit statutory language signaling its intent to preempt state law,[5] 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.

         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. 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)).

         “[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.” 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 (1976)).

         1. Field Preemption

         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.” 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).

         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. 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, ...

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