Petition for Writ of Certiorari — Erin Capron, et al., Petitioners v. Office of the Attorney General of the Commonwealth of Massachusetts, et al.
Supreme Court briefFeb 14, 2020
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APPENDIX
TABLE OF APPENDICES
Appendix A
Opinion, United States Court of Appeals
for the First Circuit, Capron v. Mass.
Attorney Gen., No. 17-2140 (Dec. 2, 2019) .. App-1
Appendix B
Memorandum & Order, United States
District Court for the District of
Massachusetts, Cultural Care, Inc. v.
Mass. Attorney Gen., No. 16-cv-11777-IT
(Aug. 1, 2017) ............................................ App-73
Appendix C
Order of Dismissal, United States
District Court for the District of
Massachusetts, Cultural Care, Inc. v.
Mass. Attorney Gen., No. 16-cv-11777-IT
(Aug. 2, 2017) ........................................... App-100
Appendix D
Order, United States District Court for
the District of Massachusetts, Cultural
Care, Inc. v. Mass. Attorney Gen., No. 16cv-11777-IT (Oct. 26, 2017) ..................... App-101
Appendix E
Order, United States Court of Appeals
for the First Circuit, Capron v.
Mass. Attorney Gen., No. 17-2140
(June 13, 2018) ........................................ App-104
ii
Appendix F
Order, United States Court of Appeals
for the First Circuit, Capron v.
Mass. Attorney Gen., No. 17-2140
(Jan. 27, 2020) .......................................... App-110
Appendix G
Relevant Statutory and Regulatory
Provisions.................................................. App-112
22 U.S.C. § 2451 ................................. App-112
22 C.F.R. § 62.31 ................................ App-112
App-1
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
________________
No. 17-2140
________________
ERIN CAPRON; JEFFREY PENEDO; CULTURAL CARE,
INC., d/b/a CULTURAL CARE AU PAIR,
v.
Plaintiffs-Appellants,
OFFICE OF THE ATTORNEY GENERAL OF THE
COMMONWEALTH OF MASSACHUSETTS; MAURA T.
HEALEY, in her capacity as Attorney General of the
Commonwealth of Massachusetts,
Defendants-Appellees.
________________
Appeal from the United States District Court
for the District of Massachusetts
________________
Filed: Dec. 2, 2019
________________
Before: Torruella, Lynch, and Barron, Circuit Judges.
________________
OPINION
________________
BARRON, Circuit Judge. This appeal concerns
the relationship between the wage and hour rights
that Massachusetts confers on in-home childcare
services providers and the operation of a federal
App-2
program that promotes international cultural
exchange. The United States Department of State
(“DOS”) administers this federal program, which we
will refer to as the “Au Pair Program.” Through it,
foreign nationals may obtain a special type of visa and
then be placed with host families in the United States,
so that the foreign nationals may provide in-home
childcare services to the host families while they also
pursue their post-secondary school studies.
The issue that we must resolve in this appeal
arises in connection with a lawsuit that was filed on
August 31, 2016 in the United States District Court
for the District of Massachusetts against the Attorney
General of Massachusetts (“Attorney General”). The
plaintiffs are Cultural Care, a DOS-approved private
placement agency based in Massachusetts, as well as
Erin Capron and Jeffrey Penedo, who each reside in
Massachusetts and with whose families Cultural Care
has in the past placed foreign national visa holders
through the Au Pair Program.
The plaintiffs contend that the 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. The
plaintiffs seek declaratory and injunctive relief.
The Attorney General moved to dismiss the
plaintiffs’ complaint. The District Court granted the
motion on August 1, 2017. The next day, the District
Court ordered the plaintiffs’ case dismissed. The
District Court also denied the plaintiffs’ motion for
reconsideration of the order of dismissal or, in the
alternative, for leave to amend the complaint.
App-3
The plaintiffs timely appealed both the order of
dismissal and the denial of the motion for
reconsideration or, in the alternative, for leave to
amend the complaint. We now affirm. 1
I.
We first describe the relevant federal and state
bodies of law. We start with the federal measures. We
then turn to the state law measures.
A.
The federal measures consist of authorizing
legislation and implementing regulations. We
consider each type of federal measure in turn.
1.
Nearly sixty years ago, Congress enacted the
Fulbright-Hays Act. See Pub. L. No. 87-256 § 102, 75
Stat. 527 (1961) (codified at 22 U.S.C. § 2452). That
statute authorized a series of “educational” and
“cultural exchanges.” Id. The preamble to the statute
describes Congress’s purposes in authorizing these
cultural exchanges as follows:
[T]o enable the Government of the United
States to increase mutual understanding
between the people of the United States and
the people of other countries by means of
educational and cultural exchange; to
strengthen the ties which unite us with other
nations by demonstrating the educational
and cultural interests, developments, and
1 Our conclusion accords with the only other precedent to
address the issue. See Beltran v. InterExchange, Inc., 176 F.
Supp. 3d 1066, 1083-84 (D. Colo. 2016).
App-4
achievements of the people of the United
States and other nations, and the
contributions being made toward a peaceful
and more fruitful life for people throughout
the world; to promote international
cooperation for educational and cultural
advancement; and thus to assist in the
development of friendly, sympathetic, and
peaceful relations between the United States
and the other countries of the world.
22 U.S.C. § 2451.
The Fulbright-Hays Act provided funding for a
series of cultural exchange programs to bring foreign
nationals to this country and also created the J-Visa.
See Pub. L. No. 87-256 § 109 (codified at 8 U.S.C.
§ 1101(a)(15)(J)). The provision of the statute that
creates the J-Visa states that, to qualify for it, 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).
App-5
The DOS is currently responsible for
implementing the provisions of the Fulbright-Hays
Act that we have just described. See 22 C.F.R. § 62.1.
The DOS does so through regulations that govern
different types of “exchange visitor programs.” See id.
§§ 62.3, 62.4; Exchange Visitor Program—Au Pairs,
74 Fed. Reg. 15,844 (Apr. 8, 2009) (to be codified at 22
C.F.R. pt. 62). The “Exchange Visitor Program”
regulations authorize the DOS to designate only
certain types of exchange programs as “exchange
visitor programs.” See, e.g., 22 C.F.R. § 62.24(b)
(authorizing designation of “exchange visitor
programs in the Teacher category”); id. § 62.31
(authorizing designation of “au pair exchange
program[s]”). 2
Participants in these “exchange visitor programs”
can receive “J-1” visas. 8 C.F.R. § 214.1(a)(2)
(designating visas provided pursuant to 8 U.S.C.
§ 1101(a)(15)(J) as “J-1” visas). A J-1 visa is a
nonimmigrant visa that permits a foreign national to
come to the United States for “teaching, instructing or
lecturing, studying, observing, conducting research,
consulting, demonstrating special skills, or receiving
training.” 8 U.S.C. § 1101(a)(15)(J); 8 C.F.R.
§ 214.1(a)(2). Persons who possess J-1 visas “may be
employed” in the United States only through
“exchange
visitor
programs.”
8
C.F.R.
§ 274a.12(b)(11).
The DOS “Exchange Visitor Program” regulations
provide that exchange visitor programs are
2 The “participants” in a DOS-designated exchange visitor
program are also called “exchange visitors” in the regulations. 22
C.F.R. §§ 62.1(b), 62.2 (defining “Exchange Visitors”).
App-6
“conduct[ed]” by “sponsors[.]”22 C.F.R. §§ 62.3,
62.31(c). The sponsors are private placement agencies,
such as the one that is a plaintiff in this case: Cultural
Care.
The “Exchange Visitor Program” regulations
authorize the DOS to “designate” the private
placement programs “conducted” by these sponsors as
“exchange visitor programs.” Id. §§ 62.3, 62.31 (a)-(c).
The DOS’s designation authorizes the sponsor to
“select[]” foreign nationals to be “participants” in its
exchange visitor program, which in turn permits the
participants to be placed in employment settings in
this country pursuant to their J-1 visas. See id.
§ 62.31(c)-(d).
Sponsors “must remain in compliance with all
local, state, and federal laws, and professional
requirements necessary to carry out the activities for
which [they are] designated, including accreditation
and licensure, if applicable.” Id. § 62.9(c). Regardless
of the nature of the DOS-designated exchange visitor
program, the sponsor must, among other things,
appoint “Responsible Officers.” Id. § 62.11(a).
If the exchange visitor program has “an
employment component,” the “Responsible Officers”
must have “a detailed knowledge of federal, state and
local laws pertaining to employment.” Id. Sponsors of
exchange visitor programs that have an employment
component must provide “clear information and
materials” to program participants, including
information on “employee rights and laws, including
workman’s compensation.” Id. § 62.10(b)(9).
The DOS “Exchange Visitor Program” regulations
do not purport to regulate directly those for whom the
App-7
participants in these exchange visitor programs work
after the sponsors have placed them in a job. See id.
§ 62.31. The regulations—with limited exceptions not
relevant here—directly regulate only the sponsors
themselves. Id. The only sanctions that the
regulations set forth that the DOS may impose on a
sponsor are for its failure to meet one of its obligations
under the regulations. Those sanctions—again, with
limited exceptions not relevant here—only concern the
ability of the sponsors to retain or renew the DOS’s
designation of the placement programs that they run
as ones that qualify as “exchange visitor program[s].”
Id. §§ 62.31(n), 62.50.
2.
The DOS’s “Exchange Visitor Program”
regulations contain subsections that “govern” each
type of exchange visitor program that the regulations
encompass. See §§ 62.20-.32. The program types
include ones for summer workers, au pairs, academics,
teachers, and camp counselors. See id. The section of
the DOS “Exchange Visitor Program” regulations at
issue governs exchange visitor programs for “au pair
participants.” Id. § 62.31(a). These programs are also
known as “au pair exchange program[s].” Id.
§ 62.31(c).
In 1986, the United States Information Agency
(“USIA”), which was—until 1999—responsible for the
implementation
of
the
Fulbright-Hays
Act,
established au pair exchange programs on a two-year,
pilot basis. See Exchange Visitor Program, 59 Fed.
Reg. 64,296 (Dec. 14, 1994) (to be codified at 22 C.F.R.
pt. 514) (describing the 1986 program); see also
Foreign Affairs Reform and Restructuring Act of 1998,
App-8
Pub. L. No. 105-277, div. G, §§ 1311-1314, 112 Stat.
2681, 2681-776 (codified at 22 U.S.C. §§ 6531-6533)
(dissolving the USIA and transferring implementation
of the Fulbright-Hays Act to DOS). This two-year
pilot, the USIA later observed, had “rather nonspecific program guidelines.” See 59 Fed. Reg. at
64,296, 64,299 (describing the preexisting program).
After the two-year trial period ended, the USIA
decided not to designate the au pair exchange
programs permanently due to a concern that “the
programs were outside the Agency’s statutory
authority to oversee educational and cultural
exchange activities.” Id. Nevertheless, because of the
substantial interest in the program, Congress enacted
“special legislation” to “obligat[e]” the USIA to
continue the programs. Id. Congress also directed the
United States General Accounting Office (“GAO”) to
examine them. See U.S. Gov’t Accountability Office,
GAO-90-61, U.S. Information Agency: Inappropriate
Uses of Educational and Cultural Exchange Visas 19
(1990).
A GAO report, issued in 1990, determined that
the pilot au pair exchange programs were not
consistent with the intent of the Fulbright-Hays Act.
Id. The report questioned whether the au pair
exchange programs were properly designated as
employment or cultural programs—and thus the
report questioned which federal agency should run the
programs. Id. The GAO report noted the concern
expressed by the United States Department of Labor
(“DOL”) that the “au pair program violates the spirit
of the J-visa statute” because “a 40-hour week
constitutes full-time employment, and, as such . . .
App-9
[t]hese [foreign] workers would normally have to
receive certification from the [DOL] that enough
qualified U.S. workers were not available and that the
wages and working conditions attached to job offers
would not adversely affect similarly employed U.S.
workers.” Id. Thus, the GAO report concluded, “[a]s
currently structured, au pair programs would
normally be subject to [DOL] administrative review
and certification.” Id. at 20.
Notwithstanding the concerns raised in the GAO
report, Congress directed the USIA, pursuant to a new
statute, to continue to implement the au pair exchange
programs “until [they] could be transferred to a more
appropriate federal agency.” 59 Fed. Reg. at 64,29697; see Eisenhower Exchange Fellowship Act of 1990,
Pub. L. No. 101-454, 104 Stat. 1063. In 1994, Congress
passed the Technical Amendments to the State Basic
Authorities Act, Public Law 103-415, which
authorized the USIA “to promulgate regulations
specifically governing the au pair programs.” 59 Fed.
Reg. at 64,297.
In 1994, the USIA promulgated interim final
regulations “to govern the au pair programs [in ways
that are] consistent with the provisions of the
Fulbright-Hays Act.” Id. Those interim final
regulations established the first iteration of what we
refer to as the “Au Pair Program.” Id.
The 1994 interim final regulations stated that
“[a]u pair programs permit foreign nationals to enter
the United States for a period of one year for the
purpose of residing with an American host family
while participating directly in the home life of the
family and providing limited childcare services.” Id. at
App-10
64,296. They also contained a provision entitled
“Stipend and hours,” which obliged sponsors to
“require
that
au
pair
participants . . . are
compensated”—presumably by their host families,
though the provision does not specify who must pay
the participants for the childcare services that they
provide—“at a rate of not less than $155.00 per week.”
Id. at 64,300. The provision obliged sponsors to
require that participants would receive weekly
compensation at least equal to the wage due to them
under the FLSA if the participants had provided the
full amount of childcare services that they were
permitted under the program to provide to their host
family in a given week, regardless of whether the
participants actually had done so. In this way, the
provision ensured that compensation for the
participants would comply with the FLSA in the event
that the DOL would deem the participants
“employees” within the meaning of that statute. Id. at
64,298 (amending 22 C.F.R. § 514.31, though 22
C.F.R. § 514.31 has since been redesignated).
In 1995, the USIA revised that provision to oblige
sponsors to “require that au pair participants . . . [a]re
compensated at a rate of not less than $115.00 per
week.” Exchange Visitor Program, 60 Fed. Reg. 8547,
8553 (Feb. 15, 1995) (to be codified at 22 C.F.R. pt.
514). Once again, the USIA did so in a manner that
was intended to ensure that participants would not be
paid less than the FLSA-prescribed minimum wage
for domestic workers who qualified as “employees.” Id.
at 8551.
The USIA then revised this provision once more
in 1997. The USIA did so this time in response, in part,
App-11
to a formal determination by the DOL that au pair
participants are “employees” within the meaning of
the FLSA and thus that “au pair participants are
covered under the provisions of the [FLSA] and
therefore must receive federal minimum wage.”
Exchange Visitor Program, 62 Fed. Reg. 34,632,
34,633 (Jun. 27, 1997) (to be codified at 22 C.F.R. pt.
514).
The USIA at that time revised the “Stipend and
hours” provision to instead be titled “Wages and
hours.” Id. at 34,634. That provision was also revised
at that time to state that “[s]ponsors 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 [DOL].” Id.3
Congress then permanently authorized the Au Pair
Program. See An Act to Provide Permanent Authority
for the Administration of Au Pair Programs, Pub. L.
No. 105-48, 111 Stat. 1165 (1997).
The DOS now promulgates the au pair exchange
program regulations. Compare id. with 22 C.F.R.
§ 62.31(j)(1). The current DOS version of the
regulations describes the “objectives” of this type of
exchange visitor program as “afford[ing]” to “foreign
The plaintiffs assert that the District Court incorrectly
“suggested that the federal government has [since] ‘abandoned’”
the formula establishing an au pair’s minimum wage
requirements set out in the 1997 regulations, which was a
formula based on the federal minimum wage multiplied by a
presumed 45-hour work week minus a deduction for the costs of
room and board. But, the District Court merely accurately
described how the text of the regulations had changed over time.
3
App-12
nationals” the “opportunity to live with an American
host family and participate directly in the home life of
the host family” while providing “up to” 45 hours a
week of childcare services to the host family and also
pursuing a post-secondary education. 22 C.F.R.
§ 62.31(a)-(b). The current version of these regulations
also includes a “Wages and hours” provision that
mirrors the one in the 1997 version of the USIA’s au
pair exchange program regulations. That provision
states: “Sponsors shall require that au pair
participants [a]re compensated at a weekly rate based
upon 45 hours of child care services per week and paid
in conformance with the requirements of the [FLSA]
as interpreted and implemented by the [DOL.]” Id.
§ 62.31(j)(1).
The current version of the regulations that govern
au pair exchange programs authorizes the DOS to
designate a “bona fide program[]” of this type as an
“exchange visitor program” if it “satisf[ies]” the
specified “objectives” and if the “sponsor” meets
certain “eligibility” requirements, as well as the
regulations’ “Wages and hours” requirements. Id.
§ 62.31(b)-(c), (j). Sponsors that fail to meet those
requirements or that fail to “[e]nforce and monitor
host family’s compliance with the stipend and hours
requirements” may face “immediate program
revocation procedures.” Id. § 62.31(n). The DOS au
pair exchange program regulations do not provide that
an au pair exchange program participant may enforce
against a sponsor—let alone against a host family—
the only sanctions that the regulations specify. See
generally id. § 62.31.
App-13
3.
The au pair exchange program regulations,
through their “Wages and hours” provision, crossreference the FLSA’s “requirements.” 22 C.F.R.
§ 62.31(j)(1). We thus briefly review the obligations
that the FLSA and the DOL’s regulations that
implement the FLSA impose on the employers of
domestic workers, as those “requirements” serve as
the reference point under the Au Pair Program for
calculating the weekly compensation that sponsors
must require that au pair participants receive.
Under the FLSA, “employer[s] shall pay to each of
[their] employees” a minimum hourly wage that is
currently set at $7.25 per hour. 29 U.S.C. § 206(a). In
1974, Congress amended the FLSA so that it would
apply to domestic workers and their employers. Fair
Labor Standards Amendments of 1974, Pub. L. No. 93259, 88 Stat. 55 (codified as amended in scattered
sections of 29 U.S.C.). This amendment imposed a new
requirement on employers of domestic workers to pay
the federally mandated minimum wage. Id. However,
the amendments exempt live-in domestic workers
from the provisions that require employers pay to
employees time-and-a-half for overtime. See 29 U.S.C.
§ 213(b)(21).
In implementing these amendments in 1975, the
DOL promulgated regulations that imposed certain
recordkeeping obligations on employers of domestic
workers and that permitted those employers to deduct
the costs of the domestic worker’s room and board from
the domestic worker’s pay. Extension to Domestic
Service Employees, 40 Fed. Reg. 7404 (Feb. 20, 1975)
(to be codified at 29 C.F.R. pt. 552). Employers were to
App-14
calculate such deductions either by using a fixed credit
that totaled $36 per week or by deducting their actual
costs for room and board, provided that the employers
kept records to support those itemized deductions. Id.
at 7406. The current version of these DOL regulations
permit employers of domestic workers to take
deductions either by using a fixed credit amount that
is tied to a percentage of the federal minimum wage or
by deducting their actual, itemized costs, if the
itemized deductions are supported by adequate
records. 29 C.F.R. § 552.100(c)-(d).
The FLSA contains a savings clause. 29 U.S.C.
§ 218(a). It provides that “[n]o provision of this chapter
or of any order thereunder shall excuse noncompliance
with any Federal or State law or municipal ordinance
establishing a minimum wage higher than the
minimum wage established under this chapter.” Id.
B.
We now turn to the state law measures. Like the
federal ones, they consist of a mix of statutory and
regulatory provisions.
1.
We start with the Massachusetts Fair Wage Law.
It requires that all “employer[s]” pay a minimum wage
set, as of January 1, 2019, at $12 per hour, except in
certain circumstances that are not relevant here.
Mass. Gen. Laws ch. 151, § 1. A different section of the
Massachusetts Fair Wage Law requires that
“employer[s]” pay “employee[s]” at a rate of time-anda-half for all hours that the “employee[s]” work in a
week beyond 40 hours. Id. § 1A.
App-15
2.
We next describe the Massachusetts Domestic
Workers Bill of Rights Act (“DWBORA”). Enacted in
2014, it sets forth workplace protections—including
concerning wages and hours—for “domestic workers.”
2014 Mass. Acts ch. 148, § 3 (codified at Mass. Gen.
Laws ch. 149, §§ 190-191). The DWBORA defines
“domestic worker[s]” to include, in relevant part,
“individual[s] or employee[s]” providing “nanny
services” and “other household services for members
of households . . . in private homes.” Mass. Gen. Laws
ch. 149, § 190(a).
The DWBORA also authorizes the Attorney
General to promulgate regulations to implement its
provisions, which the Attorney General has done. Id.
§ 190(o); see 940 Mass. Code Regs. 32.00-.06. We now
describe the Attorney General regulations that are
relevant to this appeal.
Whenever a domestic worker clocks more than 40
hours of “working time” in a given week, the Attorney
General’s regulations require that he or she be
“compensated at the overtime rate for all hours
worked over 40 per week pursuant to [the
Massachusetts Fair Wage Law].” 940 Mass. Code
Regs. 32.03(3). One of the regulations that implements
the
DWBORA
defines
“working
time”
as
“[c]ompensable time that includes all time during
which a domestic worker is required to be on the
employer’s premises or to be on duty.” Id. 32.02. This
definition also defines “working time” to include “meal
periods, rest periods, and sleep periods unless . . . a
domestic worker is free to leave the employer’s
premises and use the time for the domestic worker’s
App-16
sole use and benefit and is completely relieved of all
work-related duties.” Id. The regulation provides,
however, that employers and domestic workers may
enter into an advance written agreement that
excludes “meal periods, rest periods, and sleep
periods.” Id.
Other regulations that implement the DWBORA
concern the deductions that an employer may take
from a domestic worker’s wages for the costs of that
domestic worker’s food and lodging. These regulations
limit these deductions to $1.25 for breakfast, $2.25 for
lunch, $2.25 for dinner, and to $35 per week for a
single-occupancy room. Id. 32.03(5)(b)-(c). These
deductions must be agreed to, in advance and in
writing, by the domestic worker. Id. 32.03(5)(a).
Finally, the regulations that implement the
DWBORA impose recordkeeping requirements on the
employers of domestic workers. For example, the
employers of domestic workers must keep and retain
for a period of three years records concerning the
domestic workers’ wages and hours, the rate of their
pay, the costs for their meals and lodging, and various
workplace policies, such as benefits afforded, required
notice of termination, and job responsibilities. See id.
32.04(2)-(3). In addition, the employers of domestic
workers must keep time sheets that reflect the
compensable working time of the domestic worker for
each day over a two-week period and provide the
domestic worker an opportunity to review and contest
that accounting of hours. Id. 32.04(4).
3.
The parties agree that the Attorney General
considers au pair exchange program participants to be
App-17
“domestic workers” and their host families to be
“employers” within the meaning of the DWBORA. The
parties also agree that au pair participants are
“employees” within the meaning of the Massachusetts
Fair Wage Law.
II.
The parties ask us to resolve two preliminary
issues. They concern, respectively, the scope and the
nature of the plaintiffs’ preemption claims.
The “scope” issue arises because, although the
complaint’s prayer for relief does not mention the
Massachusetts Fair Wage Law, the plaintiffs contend
that their preemption claims—and thus their request
for injunctive and declaratory relief—encompass that
law. The Attorney General contends, however, that
the plaintiffs’ preemption challenge is confined to the
DWBORA and its implementing regulations, because
the prayer for relief set forth in the plaintiffs’
complaint refers only to those specific state law
measures. Our review of this issue is de novo. Carter
v. Ford Motor Co., 561 F.3d 562, 565 (6th Cir. 2009).
“A plaintiff’s failure to seek a remedy in its
complaint does not necessarily forgo that remedy.”
Town of Portsmouth v. Lewis, 813 F.3d 54, 61 (1st Cir.
2016). Thus, “a district court need not dismiss a cause
of action upon which relief is plausible, even if that
relief was not sought in the complaint.” Id.
The plaintiffs’ complaint expressly alleges that
the requirement that au pair participants comply with
the Massachusetts minimum wage, as prescribed by
the Massachusetts Fair Wage Law, “contradicts
existing [DOS] requirements” about “the federal
minimum wage, which [the DOS] has chosen to use in
App-18
calculating the amount of the [au pair’s] weekly
stipend.” In addition, the District Court’s opinion
addressed whether the Massachusetts Fair Wage Law
was preempted insofar as it applied to au pair
participants. In fact, at each stage of this litigation,
the Attorney General has argued that the
Massachusetts Fair Wage Law’s minimum wage
requirement applies to au pair participants. Thus,
there is no unfair surprise to the Attorney General in
our consideration of whether the DOS regulations
preempt the Massachusetts minimum wage that the
Massachusetts Fair Wage Law generally establishes
for those who qualify as “domestic workers” under the
DWBORA, insofar as that minimum wage
requirement applies to the host families as the
employers of au pair participants. See Lewis, 813 F.3d
at 61 (explaining that complaints should generally be
read broadly, except when it would be likely to
prejudice a defendant).
The “nature” issue arises because the plaintiffs
contend that they need only establish that the
challenged state “laws are invalid” as applied to the
“Au Pair Program.” The plaintiffs argue that they
need not show that “no set of circumstances exists”
under which the challenged laws would be valid in any
application. Even though the plaintiffs’ preemption
challenges are facial in nature, we agree with the
plaintiffs. See John Doe No. 1 v. Reed, 561 U.S. 186,
194 (2010) (explaining that the particular label of the
claim—facial versus as applied—“is not what matters”
and that “[t]he important point” is that the plaintiffs
must “satisfy our standards for a facial challenge to
the extent of [the] reach” of their claims). In fact, we
do not understand the defendants to contend
App-19
otherwise or the District Court to have ruled
otherwise. 4
III.
We now turn to the heart of the dispute: are the
state law measures at issue—in whole or in part—
preempted, insofar as they protect au pair
participants by imposing obligations on their host
families as their employers that may be enforced
against those host families? 5 The Supremacy Clause
4 This case does arise in the pre-enforcement context, but the
preemption claims involve “purely legal questions, where the
matter can be resolved solely on the basis of the state and federal
statutes at issue,” Labor Relations Div. of Constr. Indus. of Mass.,
Inc. v. Healey, 844 F.3d 318, 327 (1st Cir. 2016) (quoting Wis.
Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008)). There
also is no question that Massachusetts intends to enforce the
challenged state law measures to protect au pair participants
insofar as they are denied the protection that those measures
afford their employers. See id.
5 The plaintiffs allege in their complaint that, in the spring of
2015, the Office of the Attorney General of Massachusetts
(“OAG”) “suggested that Sponsors should be considered nonexempt ‘placement agencies’—and therefore potentially also
employers—under the [DWBORA] and the MA regulations. The
meeting terminated without clarity as to whether the MA OAG
ultimately would, or would not, interpret the MA Act as applying
to [Cultural Care].” The plaintiffs asked the District Court to
conclude that the state law measures were preempted and could
not be enforced against Cultural Care or Cultural Care’s host
families. In so doing, the plaintiffs did not develop an argument
in support of those preemption claims that depends on the state
law measures being enforced against Cultural Care, as a sponsor,
and instead focused their argument on why the state law
measures were preempted insofar as they could be enforced
against the host families as employers of au pair participants.
The District Court in rejecting the plaintiffs’ preemption claims
did not address, specifically, whether the DWBORA and its
App-20
provides that federal law “shall be the supreme Law
of the Land . . . any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.” U.S.
Const. art. VI, cl. 2. This Clause gives Congress “the
power to preempt state law,” which Congress may
exercise either expressly or impliedly. Arizona v.
United States, 567 U.S. 387, 399 (2012). A federal
agency, however, also may preempt state law through
its regulations, and a federal agency, too, may do so
regulations—or the state’s minimum wage—could be enforced
against sponsors and not just the host families themselves.
On appeal, the plaintiffs refer to the “Au Pair Program” but,
once again, do not develop an argument for preemption that
depends on the application of the state law measures to sponsors
rather than to host families. Instead, in their briefing to us, the
plaintiffs refer only to the obligations that the state law
provisions at issue would impose on host families, in consequence
of the childcare services that au pair participants provide to them
through the Au Pair Program. We thus do not have the distinct
question before us on appeal whether the DWBORA and its
implementing regulations or the Fair Wage Law, as applied to
sponsors in particular, are preempted by the federal regulations
that govern sponsors of au pair exchange visitor programs. Nor
is it clear that such a challenge to the enforceability of those
measures against the sponsors would be ripe. See Labor
Relations Div., 844 F.3d at 327 (finding a preemption challenge
unripe where the nature of and legal basis for the state law
enforcement action was uncertain). We emphasize, though, that
it is clear that Cultural Care, even though it is a sponsor rather
than a host family, would be directly impacted by an application
of the relevant state law provisions to host families, in light of
Cultural Care’s allegations about the impact that such
application to host families would have on Cultural Care’s ability
to find host families with which to place au pair participants and
the host family plaintiffs’ allegations about their intention to
serve as host families in the future.
App-21
either expressly or impliedly. See Fidelity Fed. Sav. &
Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982).
The plaintiffs assert only implied preemption.
There are two types—field preemption and conflict
preemption, which itself comes in two varieties:
obstacle preemption and impossibility preemption. We
begin with the plaintiffs’ field preemption claim. We
then consider their conflict preemption claims, which
concern only obstacle preemption.
The burden to prove preemption is on the
plaintiffs. See United States v. Lahey Clinic Hosp.,
Inc., 399 F.3d 1, 9 (1st Cir. 2005). That is so even if the
presumption against preemption that often applies to
implied preemption claims does not apply here.
Lusnak v. Bank of Am., N.A., 883 F.3d 1185, 1191 (9th
Cir.), cert. denied, 139 S. Ct. 567 (2018).
A.
States may not regulate “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 (citing Gade v.
Nat’l Solid Waste Mgmt. Ass’n, 505 U.S. 88, 115 (1992)
(Souter, J. dissenting). Thus, unlike conflict
preemption, field preemption ousts state law
measures even if no evidence shows that they would
conflict with the federal regulatory scheme either by
frustrating its purposes and objectives, see Hines v.
Davidowitz, 312 U.S. 52, 67 (1941), or by imposing
obligations that it would be impossible for the
regulated party to comply with and also comply with
the obligations that the federal regulatory scheme
imposes, see Wyeth v. Levine, 555 U.S. 555, 589-90
(2009). The federal government’s intent to preempt a
App-22
field instead “can be inferred from [1] a framework of
regulation ‘so pervasive . . . that’” it leaves “‘no room
for the States to supplement it’ or [2] 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.’” Arizona, 567 U.S. at
399 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947)).
The plaintiffs contend that the detailed and
comprehensive nature of the DOS au pair exchange
program regulations warrants the inference that the
DOS intended to exclusively govern a field of state
regulation that encompasses the Massachusetts wage
and hour measures, insofar as these measures may be
enforced to protect the rights of au pair participants
against their host families as their employers. The
plaintiffs further contend that the dominance of the
federal interests that the Au Pair Program
implicates—namely, the federal foreign affairs
interest in regulating immigration and the federal
foreign affairs interest in managing foreign
relations—supports this same inference. 6
6 The plaintiffs also make a textual argument for finding field
preemption based on the DOS “Exchange Visitor Program”
regulations as a whole, which specifically require sponsors of
certain other types of exchange visitor programs—but not of au
pair exchange programs—to ensure that those who employ
participants in those programs comply with state wage and hour
laws. The plaintiffs contend that we thus must infer—by negative
implication—that the DOS did intend to preempt a field that
would encompass state wage and hour laws that protect au pair
participants. As the plaintiffs make this same argument in a
more developed fashion in support of their claim of obstacle
preemption, see Crosby v. Nat’l Foreign Trade Council, 530 U.S.
363, 372 n.6 (2000) (“[w]e recognize, of course, that the categories
App-23
We review de novo the District Court’s finding
that there is no field preemption. See Bower v.
Egyptair Airlines Co., 731 F.3d 85, 92 (1st Cir. 2013).
We conclude that the District Court did not err in
rejecting the plaintiffs’ field preemption claim.
1.
In De Canas v. Bica, the United States Supreme
Court considered a claim that “Congress, in enacting
the [Immigration and Nationality Act (“INA”)],
intended to oust state authority to regulate” the
employment of undocumented aliens “in a manner
consistent with pertinent federal laws” due to the
comprehensive and detailed nature of that federal
statute. 424 U.S. 351, 357 (1976). The Court applied
the presumption against preemption, see id. at 360-61,
notwithstanding that the INA represented an exercise
of the federal government’s power over immigration
and thus implicated the federal government’s power
over foreign affairs, see id. at 353.
De Canas explained that the Court had “never
held that every state enactment which in any way
deals with aliens is a regulation of immigration and
thus per se pre-empted by this constitutional power,
whether latent or exercised.” Id. at 355. De Canas
added that the state laws at issue were not deciding
“who should or should not be admitted into the country
and the conditions under which a legal entrant may
remain,” as they merely concerned the power to
of preemption are not “rigidly distinct”), we explain our reasons
for rejecting the argument in that portion of our opinion, see infra
Section III.B.2.
App-24
employ undocumented aliens already in the country.
Id.
The Court also explained that the state law
measures—which regulated employment—concerned
a quintessentially local area of regulation. See id. at
356-57. This fact, the Court determined, also
counseled against inferring that Congress intended to
preempt the relevant field through the INA. Id.
With the presumption against preemption in
place,
the
Court
then
held
that
“[t]he
comprehensiveness” of the INA, “without more[,]” was
not sufficient to establish the “clear and manifest”
congressional intent to oust state law that is required
to overcome the presumption against preemption. Id.
at 357, 359. Accordingly, the Court rejected the claim
of field preemption, id., concluding that the “nature
and complexity” of the federal subject matter made the
“detailed statutory scheme . . . likely and appropriate,
completely apart from any questions of pre-emptive
intent,” id. at 359-60 (quoting New York Dep’t of Social
Servs. v. Dublino, 413 U.S. 405, 415 (1973)).
The plaintiffs do not dispute that the presumption
against preemption that De Canas applied would be
especially difficult to overcome here. The details of the
federal program in this case are set forth in federal
regulations, not a federal statute. See Hillsborough
Cty. v. Automated Med. Labs., Inc., 471 U.S. 707, 71718 (1985) (justifying a reluctance to infer preemptive
intent from the comprehensiveness of regulations
based in part on the “variety of means, including
regulations, preambles, interpretive statements, and
responses to comments” through which an agency can
App-25
“make their intentions clear if they intend for their
regulations to be exclusive”).
In fact, we do not understand the plaintiffs to
argue that, insofar as the presumption against
preemption does apply, their field preemption claim
can succeed. The plaintiffs contend, however, that the
presumption against preemption on which De Canas
relied does not apply.
The plaintiffs rely on Buckman Co. v. Plaintiffs’
Legal Committee, 531 U.S. 341, 347 (2001), for that
assertion. They contend that the assertedly
preemptive federal measures here operate in fields
that are “inherently federal in character,” id., foreign
relations and immigration, and thus that, under
Buckman, the presumption against field preemption
that the Supreme Court applied in De Canas does not
apply. But, Buckman—which concerned conflict, not
field preemption, id. at 348—explained that the
presumption against preemption did not apply there
because the “federal enactments [were] a critical
element” in the state law claim in that case. See id. at
353. The state employment laws that the plaintiffs
seek to preempt here, however, are generally
applicable to all domestic workers. Thus, they are not
predicated on the existence of the federal au pair
exchange program regulations. See Mass. Gen. Laws
ch. 149, §§ 190-191; 940 Mass. Code Regs. 32.00 et
seq. 7
7 The DOS, we note, in its amicus filing, invokes Wachovia
Bank, N.A. v. Burke, 414 F.3d 305, 314 (2d Cir. 2005), to argue
that there is no presumption against preemption if federal
authority has occupied the field “for an extended period of time.”
But, Wachovia, which concerned the preemptive effect of the
App-26
Even if we were to agree that the presumption
against field preemption does not apply, the plaintiffs
would still bear the burden of proving that the Au Pair
Program does preempt the relevant field. And, as we
will next explain, we find unpersuasive the plaintiffs’
arguments as to why there is affirmative evidence of a
field preemptive intent here.
2.
The plaintiffs emphasize that the DOS
regulations that establish the Au Pair Program are
detailed and comprehensive. But, we do not see why,
especially in light of the reasoning in De Canas, that
fact alone justifies the inference that the federal
government intended the Au Pair Program to preempt
a field that would encompass the state law measures
at issue. As in De Canas, we conclude that here, too, a
“detailed [federal] scheme [is] . . . likely and
appropriate, completely apart from any questions of
federal regulation of national banks, did not purport to hold that
the presumption against preemption has no application to a
federal regulatory scheme merely because it implicates, in some
manner, a “field[] of regulation that ha[s] been substantially
occupied by federal authority for an extended period of time.” 414
F.3d at 314 (citing Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d
178, 183 (2d Cir. 2005)). Nor, in light of De Canas, do we see how
Wachovia could be read to stand for such a proposition. We note,
too, that Wachovia addresses the application of the presumption
against preemption only in connection with the question of
whether Congress intended to authorize the federal agency
charged with regulating national banks to preempt state laws
that purported to regulate such banks and not with respect to the
question of whether the federal agency itself had intended to do
so. There was no dispute in that case—as there plainly is here—
concerning the intent of the federal agency with respect to
preemption.
App-27
pre-emptive intent.” 424 U.S. at 360 (quoting Dublino,
413 U.S. at 415).
The regulations set forth detailed requirements
that the DOS may enforce through sanctions. The
regulations are directed at the sponsors, however, and
the sanctions that the DOS may enforce apply to them,
not the host families themselves. The sanctions also
merely limit or end—save for exceptions not relevant
here—the ability of the sponsors to continue to
conduct DOS-approved au pair exchange programs.
Thus, the DOS’s decision to promulgate detailed and
comprehensive regulations, given that they govern
and sanction sponsors, does not support an inference
that the DOS thereby intended to oust state
employment laws that define, as part of a generally
applicable regulatory scheme, the rights and duties of
au pair participants and host families with respect to
each other in their employment relationship. For, De
Canas makes clear, the mere fact that a state law
implicates the interests of persons who are the subject
of federal regulation, even with respect to
immigration, does not alone provide a basis for
inferring that the federal regulatory scheme was
intended to preempt a field that encompasses such a
state law, at least when it concerns a matter of such
quintessentially local concern as employment. Cf. id.
at 360-61, (explaining that federalism concerns
“require[] us not to find withdrawal from the States of
power to regulate where the activity regulated was a
merely peripheral concern of the (federal regulation)”
App-28
(quoting San Diego Unions v. Garmon, 359 U.S. 236,
243 (1959)) (second alteration in the original)). 8
The plaintiffs also 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 also
requires us to presume an intent to preempt the
relevant field. But, we do not agree.
Insofar as the Au Pair Program implicates the
federal power over immigration, the Court’s ruling in
De Canas stands in the way of the plaintiffs’
contention that, in consequence, we must presume an
intent to preempt the relevant field. The Court made
clear in De Canas that the fact that a state law applies
to aliens does not alone justify a presumption that the
federal government intended for the INA to preempt
such a law. See id. at 355. Moreover, the state law
employment measures at issue in De Canas applied
only if the employees were undocumented aliens, see
8 In support of this aspect of their field preemption challenge,
the plaintiffs also invoke the conclusion in ASSE Int’l, Inc. v.
Kerry, 803 F.3d 1059, 1070-71 (9th Cir. 2015), that the Exchange
Visitor Program regulations, generally, are “comprehensive.”
That case does not address, however, the question of preemption.
Rather, it concerns only whether there was sufficient law to apply
to permit review under the Administrative Procedure Act, 5
U.S.C. §§ 551, 706, of the DOS’s compliance with those
regulations. Furthermore, the Exchange Visitor Program
regulations at issue in ASSE Int’l did not include those governing
au pair participants. Moreover, consistent with our analysis, the
Ninth Circuit pointedly observed there that “[f]or program
sponsors, the regulations have the force of law, and there are real
consequences for failing to abide by them.” Id. at 1070-71
(emphasis added).
App-29
id. at 356, and thus, in that respect, more directly
implicated the federal power to regulate immigration
(and thus foreign affairs) than do the generally
applicable state law wage and hour measures that are
at issue here. In addition, these state law measures do
not purport—as the ones at issue in De Canas did, id.
at 364,—to preclude the foreign nationals affected by
them from being employed. They merely establish the
wage and hour rights that the foreign nationals
affected by the federal regulatory scheme enjoy if they
are employed.
The plaintiffs separately contend that, because
the Au Pair Program implicates the distinct federal
interest in promoting international cultural exchange,
it implicates “a ‘federal interest . . . so dominant that
the federal system will be assumed to preclude
enforcement of state laws on the same subject.’”
Arizona, 567 U.S. at 399 (quoting Rice, 331 U.S. at
230). If the states were allowed “to apply their own
laws to the Au Pair Program,” the plaintiffs assert,
then those states’ laws “would inevitably interfere
with the federal government’s exclusive power to
determine what regulations will best achieve its
foreign relations goals.”
But, the plaintiffs do not account for the
disjuncture between the sponsor-based focus of the
DOS regulations and the employment-based focus of
the state law measures. Nor is there precedent that
indicates that a federal program that represents an
exercise of the federal power to manage foreign
relations—even if only through a program to promote
international cultural exchange—must be presumed,
for that reason alone, to preempt a state law that
App-30
merely implicates that power. See Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 419 n.11 (2003) (explaining
that, where a state is “act[ing] within . . . its
‘traditional competence,’” it might well make sense to
require some evidence of an actual conflict between
the federal and state laws in order to find preemption
on an implicit basis even when the federal law
implicates the federal interest in foreign affairs
(quoting Zschernig v. Miller, 389 U.S. 429, 459 (1968)
(Harlan, J., concurring))). 9
This case also is not one in which it would make
sense to adopt such a pro-field-preemption
presumption. The plaintiffs themselves emphasize
that Congress intended for the Au Pair Program to
“promote international cooperation” and to “assist in
the development of friendly, sympathetic, and
peaceful relations between the United States and the
other countries of the world.” 22 U.S.C. § 2451. 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
The plaintiffs also point out that, although the au pair
regulations require that au pair participants be between the ages
of 18 and 26, Massachusetts age discrimination laws “prohibit
age discrimination against any person over the age of 40.” See 40
Mass. Gen. Laws ch. 149, § 24A. But, the fact that the federal
scheme might conflict with, and thus preempt, specific sections
of Massachusetts law unrelated to a domestic worker’s wage and
hour rights provides no support for the assertion that the entire
field of state wage and hour laws is preempted with respect to
their application to host families as employers of au pair
participants.
9
App-31
similar work. We thus conclude, like the District
Court, that the plaintiffs have failed to meet their
burden to show that the federal government intended
to preempt a field that would encompass the state law
measures that they challenge.
B.
We now consider the plaintiffs’ conflict
preemption claims, which concern only obstacle
preemption. 10 As we have noted, the burden to
establish this form of preemption is on the plaintiffs,
whether or not the presumption against preemption
applies.
The notion that underlies obstacle preemption is
that the federal government would want a federal
measure to be preemptive of any state law that
“stands as an obstacle to the accomplishment and
execution of the full purposes and objectives” of that
federal measure, Hines, 312 U.S. at 67; see also Geier
v. Am. Honda Motor Co., 529 U.S. 861, 873 (2000).
Thus, the plaintiffs do not, as they did in arguing for
field preemption, ask us to infer an intent on the part
of the federal government to oust a whole field of state
regulation
merely
from
the
detailed
and
comprehensive nature of the au pair exchange
program regulations. Nor do they ask us to infer such
an intent from the fact that the Au Pair Program
implicates the federal foreign affairs power over
10 The plaintiffs make no argument concerning the other
variant of conflict preemption—known as impossibility
preemption—because they do not dispute that it is possible for
sponsors, au pair participants, and host families alike to comply
with each of the state law measures at issue while also complying
with each of the federal ones.
App-32
immigration or foreign relations. Instead, they ask us
to draw the requisite inference of an intent to oust the
state wage and hour laws at issue from what they
contend are the specific purposes and objectives that
underlie that federal program.
The plaintiffs contend in that regard as follows.
The plaintiffs argue that, to accomplish the
underlying objective of promoting international
cultural exchange, Congress and the DOS sought, in
establishing the Au Pair Program, to: (1) encourage a
diverse array of American families throughout the
United States to host au pair participants,
(2) encourage foreign nationals to seek out placements
with host families in all parts of the country, and
(3) ensure that the relationship between host families
and au pair participants would be marked by true
cultural exchange. The plaintiffs contend that it
follows from these asserted underlying purposes and
objectives that we must infer (1) that the DOS
intended to set a uniform, nationwide ceiling on the
obligations that could be imposed by states on host
families with respect to the wage and hour rights of au
pair participants; (2) that, in service of this end, the
federal government intended to establish a
nationwide, uniform ceiling on the recordkeeping and
administrative burdens that could be imposed on host
families with respect to au pair participants who
provide in-home childcare services to them; and
(3) that the obligations set forth in the DOS au pair
exchange program regulations on sponsors themselves
constitute that ceiling.
The plaintiffs then tie up their argument for
finding obstacle preemption this way. They contend
App-33
that the enforcement of each of the challenged
Massachusetts measures necessarily would frustrate
the federal objective of establishing such a nationally
uniform system of compensation. The enforcement of
each such measure, they argue, necessarily would
exceed the regulatory ceiling that the Au Pair
Program established by imposing an independent and
additional state obligation on host families not
imposed by the Au Pair Program itself. 11
We begin by reviewing the relevant precedents in
this area and how they bear on the plaintiffs’
argument that there should be no presumption
against finding that the state law measures in this
case would pose an obstacle to the accomplishment of
the Au Pair Program’s purposes and objectives. We
then explain why, reviewing the issue de novo, see
Bower, 731 F.3d at 92, we conclude that the plaintiffs
In setting forth this contention, the plaintiffs go into
considerable detail about the claimed burdensome impact of
these Massachusetts measures on host family obligations with
respect to compensation, recordkeeping, and administration.
But, we understand the plaintiffs to be pointing to these alleged
burdens merely to provide support for the actual premise of their
obstacle preemption claims: that the purpose of the DOS and
Congress was to establish a nationally uniform compensation
and hours ceiling—pegged in substantial part to the minimum
requirements of the FLSA—that would preempt the wage and
hour rights that states might confer on the au pair participants
themselves to enforce against their host families. See infra
Section III.B.3.a. We do not understand the plaintiffs to be
making an argument that these particular state law measures
may be deemed preemptive only because they are especially
burdensome, such that other state wage and hour measures that
would impose less burdensome but still independent and
additional obligations on host families would not be preempted.
11
App-34
have not met their burden to establish obstacle
preemption here, even if the presumption against
preemption does not apply.
1.
The plaintiffs contend, in essence, that the
relevant DOS regulations set not only a federal
regulatory floor on au pair participant wage and hour
protections but also, implicitly, a federal regulatory
ceiling that limits the wage and hour protections that
states may provide to au pair participants. A similar
floor-ceiling issue arises with some frequency in
disputes over obstacle preemption. It often does so,
however, in settings that do not implicate immigration
or foreign relations. It thus often arises in settings in
which the presumption against preemption—and thus
a presumption against construing the federal
regulatory floor also to be a ceiling on state
regulation—more clearly applies.
Here, however, the plaintiffs contend that no such
presumption against preemption applies, given the
nature of the federal interests implicated by the Au
Pair Program. The plaintiffs rely on Boyle v. United
Technologies Corp., which they contend holds that the
evidence of “[t]he conflict with federal policy need not
be as sharp” when the federal government is operating
in a field of unique federal interest, such as the
plaintiffs contend that the fields of foreign relations
and immigration implicated by the Au Pair Program
are. 487 U.S. 500, 507 (1988). The plaintiffs further
contend that, in the absence of such a presumption
against preemption, we must conclude that the state
law measures would frustrate the federal objective of
App-35
establishing a nationally uniform compensation
scheme for au pair participants.
But, even if Boyle could be read to suggest that the
evidence of the ceiling-setting intention here need not
be clear, the plaintiffs still bear the burden of
demonstrating that there is a conflict between the
state law measures and the Au Pair Program by
showing that the former would frustrate the purposes
and objectives of the latter. Moreover, the plaintiffs do
not dispute that, to meet that burden, they must
identify affirmative evidence that Congress or the
DOS had a ceiling-setting—and thus obstaclepreemption-creating—intent. See Arizona, 567 U.S. at
400, 414 (describing the presumption against
preemption in a case involving preemption based on
federal immigration law and finding one provision
“likely would survive preemption—at least absent
some showing that it has other consequences that are
adverse to federal law and its objectives”).
As we will next explain, the plaintiffs’ arguments
about the text of the relevant federal statutes and the
DOS regulations, as well as their underlying history,
fails to identify the needed affirmative evidence. Thus,
we conclude that a finding of the requisite ceilingsetting intent would necessarily rest on the kind of
unfounded speculation about the federal government’s
implicit intentions that may not ground a finding of
obstacle preemption. See Chamber of Commerce of
U.S. v. Whiting, 563 U.S. 582, 607 (2011) (plurality
opinion). 12
12 We note that two relatively recent cases, Geier, 529 U.S. 861,
and Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323 (2011),
wholly apart from their apparent reliance on the presumption
App-36
against preemption, are instructive in fleshing out the kind of
inquiry that courts must undertake to determine whether a
federal agency regulation that clearly sets a regulatory floor for
private conduct should nonetheless be construed to have
impliedly also set a federal regulatory ceiling for the regulation
of that private conduct by the states. In Geier, for example, the
Court found that, in requiring automobile manufacturers to
install passive restraints, such as airbags, in their vehicles, the
United States Department of Transportation (“DOT”) had
deliberately provided the manufacturers with a range of choices
to encourage technological development. Geier, 529 U.S. at 87479. Thus, the Court found that the DOT had impliedly
established not only a choice-restricting regulatory floor on the
manufacturers, but also a choice-preserving regulatory ceiling on
what states could mandate manufacturers must do with respect
to installing passive restraints. Id. Therefore, the Court held, a
state tort law that imposed a duty on the manufacturers to install
a specific type of passive restraint was preempted because its
enforcement would frustrate the implicit federal objective of
preserving the choice of manufacturers to comply with the federal
regulation by a means other than the installation of that type of
passive restraint. Id. at 882.
In Williamson, which concerned a related DOT regulation,
however, the Court came to the opposite conclusion. There, the
DOT’s seatbelt regulation once again left manufacturers with a
choice—this time as to what type of seatbelt to install. Moreover,
as in Geier, the state law at issue “would restrict that choice” by
requiring additional safety measures. Williamson, 562 U.S. at
332. But, Williamson ruled that, because the DOT, in the federal
regulation at issue, was concerned only with safety and not with
providing manufacturers with a choice as to what seatbelt to
install, the state law requirement under review was not
preempted. Id. Moreover, Williamson explained, although the
state law requirement that was being challenged would impose
costs on the manufacturers above those that they would incur by
complying with the federal regulation’s floor, that fact alone
provided no basis for finding a preemption-creating conflict
between state and federal law. Id. at 335.
App-37
2.
We have already explained why the federal
statutory provisions that authorize the Au Pair
Program do not, by terms, demonstrate that the
federal government impliedly intended to establish a
nationally uniform compensation scheme. See supra
Section III.A.2. Nor do the plaintiffs develop an
argument that those provisions themselves,
independent of the DOS regulations that implement
the Au Pair Program, show that the federal
government intended to establish the kind of ceiling
that would create the conflict that would warrant a
finding of obstacle preemption. We thus follow the
parties in focusing our attention on the DOS
regulations that define the parameters of the Au Pair
Program. See CSX Transp., Inc. v. Easterwood, 507
U.S. 658, 664 (1993).
To show the requisite ceiling-setting intent, the
plaintiffs focus chiefly on the provision of the au pair
exchange program regulations that is entitled “Wages
and hours.” 22 C.F.R. § 62.31(j). The provision states:
“Sponsors shall require that au pair participants:
(1) Are compensated at a weekly rate based upon 45
hours of child care services per week and paid in
conformance with the requirements of the [FLSA] as
interpreted and implemented by the [DOL].” Id. That
provision further states, with respect to hours, that
sponsors “shall require” that “au pair participants . . .
do not provide more than 10 hours of child care per
day, or more than 45 hours of child care in any one
week.” Id. §62.31(j)(2).
The plaintiffs emphasize that the provision sets
the amount of compensation that sponsors shall
App-38
require that au pair participants receive each week. It
sets that amount, the plaintiffs note, on the
assumption that au pair participants will provide the
full 45 hours of childcare services a week that the Au
Pair Program permits them to provide, regardless of
whether the au pair participants provide it. The
plaintiffs contend that the provision in this way
reveals that the DOS intended to establish a
compensation system that is not intended to pay au
pair participants for the actual number of hours that
they work. It is proper to infer, the plaintiffs thus
argue, that the DOS did not intend for au pair
participants to be able to require their host families to
pay them the minimum wage that a state might
require for each actual hour of work, if the resulting
wage for the week would exceed the weekly
compensation amount set forth in the DOS
regulations themselves for 45 hours of such work.
Rather, the plaintiffs assert, the text of this provision
shows, albeit implicitly, that the DOS intended to set
an independent, nationally uniform compensation
scheme that would preempt a more generous one that
a state might establish, even if the state law scheme
took the form of a generally applicable wage and hour
law.
But, the text of this provision imposes the
obligation to require that au pair participants receive
a certain amount of weekly compensation only on the
sponsors. No obligation, enforced by the DOS, is
imposed on the host families themselves. The
obligation that DOS may enforce against the sponsors
is defined, moreover, in terms that make it hard to
draw the ceiling-setting inference that the plaintiffs
ask us to make.
App-39
An au pair participant is clearly paid “in
conformance with” the FLSA minimum wage for a
domestic worker who provides 45 hours a week in
childcare services, so long as that participant receives
not less than that minimum amount of weekly
compensation. Indeed, the plaintiffs concede that this
text does not forbid au pair participants from being
paid more. Thus, the plaintiffs acknowledge, for
example, that, in accord with this provision, a host
family may voluntarily pay an au pair participant
more than the minimum wage required by the FLSA
for that amount of work without creating any conflict
with this provision. But, if a sponsor would meet its
obligation—which is the obligation that the
regulations empower the DOS to enforce—in the event
a host family chooses to be that generous, then we fail
to see what in the provision’s text indicates that a host
family may not be required to pay that higher wage in
order to comply with a state wage and hour law. After
all, a sponsor would be no less able to fulfill its
obligation to ensure that au pair participants are paid
“in conformance with” the FLSA—given that it merely
sets a non-preemptive floor—in that circumstance. 13
13 We note, too, that the current “Wage and hour” provision
replaced the “Stipend and hours” provisions of the 1994 and 1995
regulations. See supra Section I.A.2. Each of those prior versions
of the au pair exchange program regulations, respectively,
obliged sponsors to require that au pair participants “are
compensated not less than” $155 or $115. 59 Fed. Reg. at 64,300;
60 Fed. Reg. at 8553 (emphasis added). That “not less than”
formulation sounds in floor-setting, not ceiling-setting, terms. 59
Fed. Reg. at 64,300; 60 Fed. Reg. at 8553. Yet, the plaintiffs do
not contend that the agency later meant to shift course when it
changed the language to oblige sponsors to require that au pair
participants received compensation pegged to a calculation based
App-40
The au pair exchange program regulations do
contain a section that purports to describe the
“objectives” of the Au Pair Program. See 22 C.F.R.
§ 62.31(a)-(b). But, this provision does not refer to a
federal governmental interest in setting a uniform
national standard for either au pair participant wages
or for host family recordkeeping requirements. Id. Nor
do the plaintiffs contend otherwise, as they do not
argue that the “objectives” provision itself supports
their position about what the implicit objectives of the
Au Pair Program are.
The “objectives” section does state that “[a]u pair
participants provide up to forty-five hours of child care
services per week and pursue not less than six
semester hours of academic credit . . . during their
year of program participation.” Id. § 62.31(a). But,
neither the “objectives” section nor any other provision
of the DOS regulations refers—at least in any express
way—to an agency interest in capping, based on the
FLSA minimum wage, the costs of a host family that
chooses to have an au pair participant provide the full
amount of childcare services that the Au Pair Program
allows. Nor do the Au Pair Program regulations
reference state wage and hour laws, which is not
surprising given the lack of any indication that the
agency anticipated at the time of the regulations’
promulgation that state wage and hour laws would
apply to domestic workers. See infra Section III.B.3.a.
Thus, the fact that a state wage and hour law might
increase host family costs beyond what they would be
in the absence of such a law is not, in and of itself,
on “conformance with” the FLSA’s “requirements” rather than to
a fixed, minimum dollar amount.
App-41
evidence that demonstrates that such a law would
impede the accomplishment of the federal objective
reflected in the text of the DOS regulations. Cf.
Williamson, 562 U.S. at 332.
From all one can tell from the text of these
provisions, in other words, the Au Pair Program
operates parallel to, rather than in place of, state
employment laws that concern wages and hours and
that protect domestic workers generally, at least with
respect to the obligations that such state law wage and
hour measures impose on host families to do more
than what the FLSA itself requires. Thus, the text of
au pair exchange program regulations themselves
does not supply the affirmative evidence that the state
measures at issue will frustrate the federal scheme’s
objectives that the plaintiffs need to identify if they
are to meet their burden to show obstacle preemption.
The plaintiffs ask us, however, to consider the Au
Pair Program in light of the DOS “Exchange Visitor
Program” Regulations as a whole. They point out that
the regulations that govern certain other exchange
visitor programs expressly require sponsors to ensure
that program participants are paid “the higher
of . . . [t]he applicable Federal, State or Local
Minimum Wage,” 22 C.F.R. § 62.32(i)(1)(i). 14 They
note that, by contrast, the section of the “Exchange
Visitor Program” regulations that governs the au pair
exchange programs does not. See id. § 62.31(j). The
14
The summer work-travel regulations, 22 C.F.R.
§ 62.32(i)(1)(i), the teacher program, id. § 62.24(f)(5), and the
camp counselor program, id. § 62.30(f), include references to the
applicability of state and local wage laws or state that exchange
visitors should be paid like their American counterparts.
App-42
plaintiffs contend that this relative silence gives rise
to an inference of a ceiling-setting intent on the part
of the DOS by negative implication.
But, these other regulatory measures are
themselves sponsor focused, and the plaintiffs do not
suggest that, just because sponsors must ensure that
the participants in those programs must comply with
those state laws, those participants are barred from
enforcing those state laws directly against their
employers, insofar as their employers fail to comply
with them. 15 In addition, the regulatory provisions
that impose the obligation on the sponsors of those
other programs are silent with respect to whether the
DOS understood that the participants in them would
be preempted from enforcing state wage and hour laws
against their employers unless their sponsors were
obliged to ensure that those employers complied with
those laws. See, e.g., Exchange Visitor Program—
Summer Work Travel, 76 Fed. Reg. 23,177, 23,177-78
(Apr. 26, 2011) (to be codified at 22 C.F.R. pt. 62). In
consequence, the fact that the DOS did not impose
that same obligation on Au Pair Program sponsors
15 Consistent with this conclusion, the plaintiffs do not dispute
that au pair participants are “employees” under the FLSA, as the
DOL determined them to be in 1997 and as the au pair exchange
program regulations have long accepted. 62 Fed. Reg. at 34,633.
Nor do the plaintiffs appear to dispute that, if an au pair
participant could show that she had worked a given number of
hours in a week, then she would appear to have the independent
statutory right as an “employee” under the FLSA to seek
compensation for that amount of work from her host family as
her “employer” if she had not in fact been paid the required wage.
The plaintiffs appear to accept this fact, moreover,
notwithstanding that the Au Pair Program itself does not confer
that right on the participants.
App-43
does not show by negative implication that the DOS
must have intended for the Au Pair Program to impose
such a preemptive bar.
There is, moreover, textual evidence in other
provisions of the DOS “Exchange Visitor Program”
regulations that appears to be at odds with the
inference that the plaintiffs ask us to draw from the
relative silence of the regulations that govern the Au
Pair Program. The plaintiffs do not dispute that au
pair participants are “employees” within the meaning
of the FLSA. The plaintiffs thus appear to accept that
the Au Pair Program does have an “employment
component[.]” Id. § 62.11(a). The general provisions of
the “Exchange Visitor Program” regulations, however,
expressly contemplate that state laws that regulate
employment—and thus that regulate an employee’s
wages and hours—will independently protect
participants in exchange visitor programs that have
an “employment component.” Id.; see id. § 62.10(b)(9)
(providing that sponsors must also provide “clear
information and materials” to program participants,
including information pertaining to “employee rights
and laws, including workman’s compensation”).
The plaintiffs’ only response is that, at least with
respect to participants in the au pair exchange
program, this general “employment component”
provision must be referring merely to employee rights
and laws other than state wage and hour laws. But,
the ordinary meaning of the phrase “pertaining to
employment,” see id. § 62.11(a), would not appear to
exclude wages and hour laws. The provision also
applies, by terms, to any exchange visitor program
with an “employment component.” The plain text of
App-44
the “employment component” provision thus provides
no support for reading in the plaintiffs’ preferred
implicit limitation—let alone for reading in that aupair-exchange-program-based limitation and then
also drawing the negative inference from relative
silence that the plaintiffs ask us to draw.
Such a limitation on that “employment
component” provision also is not compelled by the fact
that sponsors of some exchange visitor programs must
ensure that employers comply with state wage and
hour laws. It would be odd to construe the more
onerous directive that requires sponsors of certain
visitor exchange programs to ensure employer
compliance with state wage and hour laws to limit the
scope of the less onerous directive that requires all
sponsors merely to have detailed knowledge of such
laws and to convey information about them to program
participants. Per the regulations, moreover, sponsors
clearly must have detailed knowledge of some state
employment laws—including concerning workman’s
compensation—that the regulations do not require
them to ensure that employers follow. See id. §§ 62.11,
62.10(b)(9).
We do not mean to challenge the plaintiffs’
assertion that the au pair exchange program
regulations do not themselves oblige sponsors (let
alone host families) to require that au pair
participants receive the minimum wage that a state
would require that they be paid. The regulations
plainly do not. But, the fact that the regulations do not
themselves impose on host families an obligation to
comply with state wage and hour laws that the DOS
may enforce against them does not supply the needed
App-45
affirmative evidence that the regulations were
intended to preempt the enforcement of such a state
law obligation against those families.
Finally, we find it significant that, although the
DOS’s au pair exchange program regulations make no
reference to state wage and hour laws, they do refer to
the expressly non-preemptive FLSA. It is
conspicuous—insofar as the DOS is said to have the
asserted preemptive intent—that, in cross-referencing
the FLSA’s expressly non-preemptive requirements,
the provision says nothing similarly express to
indicate that the au pair exchange program
regulations preempt independently conferred wage
and hour rights that the FLSA does not itself preempt.
In sum, the text of the au pair exchange program
regulations and the “Exchange Visitor Program”
regulations more generally do not supply the requisite
affirmative evidence that the state law measures
would pose an obstacle to the accomplishment of the
purposes and objectives of the Au Pair Program. In
fact, the text of the regulations reflects the DOS’s
intention to ensure that the regulations would
accommodate the DOL’s determination that au pair
participants are employees who are entitled to be
protected by an independent wage and hour law that
is not itself preemptive. The regulations also reflect
the fact that the DOS contemplated that state
employment laws would protect exchange visitor
program participants from their employers. Thus, if
there is a basis for concluding that the relevant DOS
provisions preempt wage and hour laws that the FLSA
does not itself preempt, that conclusion must find
App-46
support somewhere other than in the text of the DOS
regulations themselves.
3.
The plaintiffs argue that the regulatory history
lends the necessary support that, as we have
explained, the regulatory text fails to supply. The
plaintiffs point specifically, however, only to a few
brief passages from the agency commentary that
accompanied the 1994 and 1995 precursors to the
current section of the DOS regulations, which at the
time had been promulgated by the USIA. We do not
disagree that this history may be relevant to our
inquiry into agency intent. See Geier, 529 U.S. at 88485 (finding regulations to have a preemptive effect
without clear text to that effect based on the
regulatory history). But, we conclude that, when
considered in context, that history does not provide
the affirmative evidence that the plaintiffs must
identify to meet their burden to show obstacle
preemption.
a.
The plaintiffs first point to a passage from the
commentary that accompanies the USIA’s 1994
Interim Final au pair exchange program regulations.
That passage refers to the need for there to be
“uniform compensation” for au pair participants. 59
Fed. Reg. at 64,298. The plaintiffs contend that this
reference shows, quite clearly, that the agency did
intend to establish the nationally uniform
compensation system on which their obstacle
preemption claims are premised. But, the context
shows otherwise.
App-47
The agency commentary indicates that a central
concern for the agency at that time was whether “an
employer/employee relationship [was] established
between the au pair and the host family”—and thus
whether the FLSA applied to that relationship. See id.
The commentary shows that the agency thought that
the au pair-host family relationship presented an
analogous relationship to that of domestic workers
and their employers under the FLSA. The
commentary further shows that the agency was
inclined to “defer[] to more appropriate authorities” as
to the nature of that relationship rather than to make
its own independent judgment. Id. Nevertheless, the
commentary goes on to explain, the agency had
decided to base the weekly “Stipend” amount that
sponsors would have to ensure that au pair
participants received on the FLSA’s wage and hour
requirements for live-in domestic workers, assuming
the au pair participants provided 45 hours of childcare
services in that week, as if those FLSA requirements
did apply of their own accord. See id. at 64,298-300.
It is at this point in the commentary that the
reference to “uniform compensation” appears. The
reference arose because, even after having decided to
peg the stipend to an amount that would ensure
compliance with the FLSA’s floor—insofar as the
FLSA turned out to govern of its own force the au pair
participant-host family relationship—the agency still
faced a choice. The agency needed to determine how
high to set that FLSA-compliant weekly compensation
amount.
The USIA noted in the accompanying
commentary that this choice arose due to a DOL rule
App-48
that implemented the 1975 FLSA amendments that
governed domestic workers. Id. at 64,298. That DOL
rule permitted employers of live-in domestic workers
to deduct from those workers’ wages either a fixed
credit in the amount of $36 per week for their room
and board costs or their actual room and board costs
on an itemized basis, so long as employers who chose
the latter option kept records to support those
itemized deductions. 40 Fed. Reg. at 7406 (DOL
regulation setting maximum deductions).
Given that DOL rule, if the agency pegged the
weekly stipend amount to a wage due a domestic
worker for 45 hours of labor under the FLSA that was
based on the $36 fixed credit that the DOL permitted
employers to take, then the resulting compensation
amount—to be FLSA compliant—would have to be a
fixed and thus uniform dollar amount for every family
of at least—”not less than”—$155 a week. 59 Fed. Reg.
at 64,298. But, if the agency instead pegged the
amount to the itemized deductions that host families
were permitted to claim under the DOL’s
implementing regulations, then that amount (though
still FLSA-compliant) would not only potentially be
much lower, it also would, necessarily, not be uniform
across families. For, in that event, that amount
necessarily could vary from family to family (even
within a state) with the amount of the legitimate
itemized deductions that each host family might
choose to claim. Id.
The USIA, having considered both approaches,
explained in the commentary that it had decided to
“adopt[] the $36 credit approach . . . in order to ensure
that all au pair participants receive uniform
App-49
compensation.” Id. Thus, the context for the reference
to “uniform compensation” on which the plaintiffs rely
shows the following.
The USIA made the reference to its interest in
uniform compensation only in the course of
attempting to explain why, having decided to peg the
weekly compensation amount that sponsors would
have to ensure to an amount that would “not [be] less
than” the FLSA floor, it had chosen as between two
possible FLSA-compliant amounts the one that was
uniform (because pegged to the fixed credit) rather
than the one that was variable (because, pegged to the
itemized option). Accordingly, the reference to
“uniform compensation” does not provide the needed
affirmative evidence that the agency had an
independent interest in ensuring the kind of
nationwide uniformity in au pair participant
compensation that would necessitate the imposition of
a ceiling on the compensation that host families could
be required by a state to pay an au pair participant.
In fact, no mention is even made of any state wage
and hour laws, even though there is extensive
discussion in the agency commentary of the expressly
floor-setting—rather than ceiling-setting—FLSA. Nor
is the absence of any such reference so surprising that
we must assume that the agency failed to mention
such state wage and hour measures only because it
understood that they would be preempted.
The regulations then—just like the DOS
regulations now—purported only to define the
obligations of the sponsors of au pair exchange
programs. It is hard to leap from the fact that a
sponsor was not obliged to ensure that host families
App-50
comply with those wage and hour laws to the
conclusion that host families themselves were not
obliged to do so, such that au pair employee
participants could not enforce the rights that they
otherwise would have under such laws against their
host family employers. In fact, it is not clear that the
agency was even aware at the time that state wage
and hour laws protected the rights of domestic
workers. Against that uncertain state law landscape,
it would have made sense for the agency to have been
concerned only with defining the sponsors’ obligation
as to the federal minimum wage, which the
accompanying agency commentary makes clear that
the agency was aware at the time might protect au
pair participants.
b.
The plaintiffs’ other evidence from the regulatory
history comes from the commentary that accompanies
the 1995 revisions to the Au Pair Program regulations.
The plaintiffs point, first, to a portion of this
commentary in which the agency states: “the
programmatic need for a uniform wage remains.” 60
Fed. Reg. at 8551. The plaintiffs then point to a
portion of the commentary in which the agency
describes a possible future revision by the DOL of its
domestic worker regulations concerning room-andboard costs deductions by employers of domestic
workers. Id. That portion notes that, once made, that
revision would “eliminate the need for host families to
keep individualized records.” Id. But, when considered
in context, these passages do not provide the basis for
drawing the inference with respect to obstacle
App-51
preemption that the text of the regulations themselves
fail to supply.
With respect to the agency’s statement that “the
programmatic need for a uniform wage remains,” the
context shows that host families had contended that
the $155 stipend amount in the 1994 regulations was
too high. Id. The host families were of that view
because they contended that, in using the $36 fixed
credit to generate the $155 amount, the USIA was
relying on an outdated—and thus artificially low—
means of estimating the actual room and board costs
of host families as of 1995. Id. The host families thus
had argued that the agency should permit host
families to deduct their actual room and board costs
on an itemized basis, as was permitted by that same
DOL regulation, in order to account for inflation over
the last decades. Id.
The agency found this contention persuasive, in
part, but then added: “however, the programmatic
need for a uniform wage remains.” Id. For that reason,
the agency opted for a new stipend amount—$115 a
week—that would be lower than the prior one but still
tied to a fixed dollar amount rather than to one that
would vary with a particular host family’s itemized
deductions. Id. That revised approach would permit
host families to claim itemized deductions but only up
to an amount $40 greater than the $36 fixed credit
amount, assuming that host families documented the
up-to-$40-worth of itemized deductions with the
records that the DOL rule required for deductions
claimed on such an itemized basis. Id.
Thus, once again, the passage that refers to
uniformity as an agency interest appears in a specific
App-52
context. That context reveals that the reference to
uniformity reflects the agency’s continued interest in
setting the compensation amount that sponsors would
be required to ensure was paid at an amount at least
equal to the FLSA minimum but still uniform for all
host families (because pegged to a fixed dollar amount
greater than the FLSA’s $36 fixed credit deduction
option) rather than as low as the FLSA minimum but
potentially variable, even within a state, as to each
host family (because pegged to the FLSA’s itemized
deductions option). In context, then, the reference does
not concern the distinct issue on which the obstacle
preemption inquiry turns: whether the federal agency,
in establishing this uniform floor for the amount that
a sponsor must ensure that an au pair participant is
compensated, intended also to set a nationally
uniform wage ceiling, to ensure uniformity across
states, that would preclude au pair participants from
enforcing state wage and hour laws against their host
families.
The commentary also supplies important context
for the reference to the elimination of recordkeeping
burdens that appears in the accompanying agency
commentary to this iteration of the USIA regulations.
The agency explained in that commentary that it set
the new stipend amount $40 lower than it had set it in
the 1994 interim final regulations. The agency
explained that it had done so because the DOL had by
then proposed a domestic worker regulation that
would raise the cap on the fixed credit that employers
of domestic workers could claim for room and board
costs to an as-yet unknown amount. Id. Thus, the
agency explained, the DOL’s proposed revision to its
domestic worker rule would––once finalized––
App-53
substantially increase the fixed credit amount while
still providing an option for claiming itemized
deductions for room and board costs if supported by
adequate records. 16 Id.; see also Application of the Fair
Labor Standards Act to Domestic Service, 58 Fed. Reg.
69,310 (Dec. 30, 1993) (to be codified at 29 C.F.R. pt.
552) (proposed DOL rule permitting a fixed credit
amount tied to the federal hourly minimum wage and
deduction of actual costs supported by adequate
records). The agency then noted that, once the DOL
did so revise that fixed credit cap, the need for host
families to keep records to claim deductions above the
$36 fixed credit would thereby be eliminated. Id.
We note that the regulatory history references a
“programmatic need for a uniform wage.” 60 Fed. Reg. at 8551
(emphasis added). It appears that the “programmatic need” for
uniformity was a need that the agency was attributing to the
privately conducted “programs,” rather than to the agency itself,
presumably because the “programs” had an interest in opposing
itemized deductions. A duty to ensure that au pair participants
received a fixed-dollar-amount-based stipend each week, after
all, is more easily satisfied than is a duty to ensure that the
participants receive a stipend amount from their host families
that would depend on the legitimacy of the itemized deductions
that individual host families claimed. See id. This understanding
comports with the agency’s explanation that, in the end, it chose
to balance the “programmatic need” for uniformity with the needs
of host families, who favored a variable stipend based on itemized
deductions. Id. In this way, too, then, the passage from the
agency commentary on which the plaintiffs rely appears to
provide little support for concluding that the agency’s interest in
uniformity reflected an interest in establishing a nationally
uniform compensation ceiling applicable in every state rather
than merely a compensation floor that would not depend on the
deductions claimed by particular families within any state.
16
App-54
Given this context, the reference to the
elimination of the need to undertake recordkeeping
burdens fails to indicate that the agency intended to
eliminate the imposition of independently imposed
recordkeeping burdens on host families. In fact, as we
have explained, the 1995 regulations affirmatively
permitted host families to claim some itemized
deductions under the DOL domestic workers rule in a
way that the 1994 interim final regulations—due to
the higher compensation floor that had been set—did
not. But, the 1995 regulations permitted families to
claim the itemized deductions without suggesting
that, in doing so, they would not have to comply with
the recordkeeping requirements for taking such
itemized deductions that the DOL regulation imposed
of its own accord. 40 Fed. Reg. at 7406 (1975 DOL
regulations); Administrative Changes, 44 Fed. Reg.
6715 (Feb. 2, 1979) (to be codified at 29 C.F.R. pt. 552)
(1979 amendments). To the contrary, the agency noted
that this approach “will ensure adherence to federal
law,” 60 Fed. Reg. at 8551, which further reflects the
agency’s understanding that the FLSA’s (nonpreemptive)
minimum
wage
and
attendant
recordkeeping requirements would apply as
independent legal obligations to which host families
may be subject separate and apart from any obligation
that the USIA’s au pair exchange program regulations
imposed on them.
Moreover, as we shall next see, the agency
ultimately opted to require sponsors to ensure that au
pair participants received weekly compensation based
on a calculation that would be “in conformance with
the requirements of” the FLSA. 22 C.F.R. § 62.31(j)(1);
62 Fed. Reg. at 34,634. Significantly, the agency did so
App-55
at a time when those FLSA “requirements”
contemplated that employers could deduct from the
wages of domestic workers the actual costs of room
and board on an itemized basis only if such deductions
were backed up with adequate supporting records. See
29 C.F.R. § 552.100(c)-(d); Application of the Fair
Labor Standards Act to Domestic Service, 60 Fed. Reg.
46,766, 46,768 (Sept. 8, 1995) (to be codified at 29
C.F.R. pt. 552).
It is worth noting, too, that, in the commentary
accompanying the 1995 regulations, the USIA
explained for the first time that it had been
“specifically advised” by the DOL that au pairs were
“employees” of their host families and thus subject to
the FLSA. 60 Fed. Reg. at 8550. The USIA also
explained in that same commentary that it would
defer to the DOL on that issue. Id. Yet, in providing
the DOL’s analysis that supported that conclusion, the
USIA did not refer to any potential conflict between
the imposition of the FLSA’s obligations on host
families and any USIA interest, such as the goal of
cultural exchange. See id. at 8550-51. Nor did the
USIA express reservations about the DOL’s
characterization of the au pair participant-host family
relationship as an employee-employer relationship.
Nor, finally, did the USIA assert that, even though the
FLSA’s requirements are not preemptive of state wage
and hour laws, the USIA’s regulations keyed to those
very same requirements were. See id.
If anything, then, the accompanying agency
commentary indicates that the regulations were
crafted to accommodate the fact that an independent
wage and hour law—the FLSA—might treat the
App-56
relationship between au pair participant and host
family to be one between employee and employer and
thus give independent rights to the former that could
be enforced against the latter. But, that independent
federal wage and hour law itself sets only a floor for
the compensation and record keeping requirements
that states may exceed through their own wage and
hour laws. It is thus hard to see how either the USIA’s
1995 au pair exchange program regulations or the
agency commentary to them provides the requisite
support for the conclusion that the agency must have
implicitly intended to establish a preemptive ceiling
on wage and hour requirements that no state could
exceed; no such state law measures were even
mentioned in either the regulations themselves or the
accompanying agency commentary. It is especially
hard to see how those materials provide such support,
insofar as the state law obligations would be imposed
on host families as the employers of au pair
participants, given that the regulations, by their
terms, purported to impose obligations that the DOS
could enforce only on the sponsors.
c.
The one last piece of the regulatory history that
the parties discuss—the USIA’s 1997 revision to the
au pair exchange program regulations—supports the
same conclusion. That revision introduced, for the first
time, the language on au pair participant
compensation that appears in the current version of
the DOS’s au pair exchange program regulations. See
60 Fed. Reg. at 46,768.
The language refers to such compensation as a
“wage”—and thus calls to mind an employment
App-57
relation—and pegs the amount not to a fixed-dollar
number but to a calculation based on the
“requirements” of the FLSA, which, of course, are
themselves expressly not preemptive. Id. The USIA
explained in the commentary to the 1997 version of
the regulations that accompany these provisions,
moreover, that, as of that time, the DOL had
“determin[ed]” that au pair participants were
“employees” under the FLSA and thus that they
“must” be compensated in accordance with its terms.
62 Fed. Reg. at 34,633. The 1997 commentary goes on
to explain that the USIA had thus decided—as it had
long suggested that it would—to defer to the DOL’s
final view of that question. Id.
Given this context, it is notable that the
accompanying agency commentary says not a word
about either the need for “uniform” compensation or
the elimination of recordkeeping burdens. See id. at
34,632-33. Once the USIA had decided to defer to the
DOL’s final determination that au pair participants
had to be treated as “employees” under the FLSA, it
would appear, the USIA’s only interest was in obliging
sponsors to ensure that au pair participants got at
least what protection they would be due under the
FLSA, whatever its “requirements” were. Id. But that
federal interest may be fully accomplished by merely
setting a FLSA-pegged weekly compensation floor
that sponsors must require that host families meet—
and a floor that could vary based on the itemized
deductions, if backed by supporting records, that a
given host family might claim for room and board
costs. The fulfillment of that federal interest would not
require the agency to make that floor also do double
duty as a ceiling that no state could exceed in setting
App-58
the obligations of host families, as a species of
employer, with respect to those whom they employed
to provide in-home childcare services.
Nor is there anything anomalous about
concluding that the USIA had no interest in making
that floor do such double duty. As discussed above, it
is not clear whether the USIA was even aware that
any state law measures protecting the wage and hour
rights of domestic workers existed. See supra Section
III.B.3.a. A federal agency would have acted quite
sensibly, therefore, in obliging sponsors of this type of
exchange visitor program to be responsible for
requiring compliance only with clearly established
federal statutory wage and hour standards, while
leaving the employer-host-families responsible for
ensuring that they complied with any generally
applicable state wage and hour law requirements that
might emerge. Thus, contrary to the plaintiffs’
contention, the fact that there is no history of federal
agency attempts to oblige sponsors to require host
family compliance with state wage and hour laws
hardly supplies a supportable basis for concluding
that the agency must have intended to preempt the
participants themselves from enforcing such state law
measures against their host families.
C.
The plaintiffs separately point to what they
claimed would be the adverse practical impact on the
Au Pair Program of the application of the state law
measures to host families. The plaintiffs contend that,
if those measures were applicable to host families as
the employers of au pair participants, then the
enforcement of those measures would make
App-59
participation in the program for host families so costly
that it would preclude “many, and probably most”
families from doing so. The plaintiffs also contend that
such application of the Massachusetts measures
would formalize what they portray as a more informal
host-family-au pair participant relationship in ways
that the federal government could not possibly have
intended.
This line of argument rests in part on the disputed
claim that, under Massachusetts law, domestic
workers must be compensated for sleep and meal
periods even if they are completely relieved of job
duties and free to leave the premises. See 940 Mass.
Code Regs. 32.02 (defining “working time”). But, we
have no reason here to disregard the Attorney
General’s assertion about the proper construction of
state law, given the lack of clarity in the relevant
provisions. See Amerijet Int’l, Inc. v. Miami-Dade Cty.,
627 F. App’x 744, 749 (11th Cir. 2015) (“In evaluating
the [Appellant’s] facial challenge, we must consider
the county’s authoritative constructions of the
ordinance, including its own implementation and
interpretation of it.” (alteration in original)(quoting
Forsyth Cty. v. Nationalist Movement, 505 U.S. 123,
131 (1992))).
Moreover, the plaintiffs’ assertions that the
Massachusetts measures would preclude large
numbers of families from participating in the Au Pair
Program are cast in conspicuously speculative terms
(“many, probably most”). (Emphasis added). The
Massachusetts wage and hours measures are
generally applicable to domestic workers, whether
they participate in the au pair exchange program or
App-60
not. The plaintiffs’ complaint provides no basis for
surmising, however, that families who otherwise
would have become host families in order to obtain
needed in-home childcare services would opt in large
numbers to forgo obtaining such services altogether in
order to avoid the costs imposed by the DWBORA and
the Massachusetts Fair Wage Law. Yet, if such
families would not opt to forgo all such services, then
the plaintiffs have failed to explain why those families
would opt out of the Au Pair Program, for there is
simply no way for such families to obtain such services
from anyone—au pair participants or not—in
Massachusetts without incurring the costs imposed by
the DWBORA and the Massachusetts Fair Wage Law.
The plaintiffs’ assertions about the impact of the
administrative burdens and recordkeeping obligations
imposed by the Massachusetts measures suffer from
similar problems. The assertions do not, for example,
take account of the fact that similar (though not
identical) burdens and recordkeeping requirements
are already imposed by the FLSA on host families.
Compare 29 C.F.R. §§ 552.100, 552.110, with Mass
Gen. Laws ch. 151, § 15, and Mass Gen. Laws ch. 149,
§ 190(l). But see Mass. Gen. Laws ch. 149 § 190(l)(v)(ix) (requiring that host families keep records of
various employment
policies,
such
as job
responsibilities
and
procedures
regarding
termination). The assertions thus fail to show why the
differential recordkeeping burdens would be so
transformative as to require the conclusion that they
would prevent the Au Pair Program from serving its
goal of promoting international cultural exchange.
App-61
This impact-based line of argument, however,
ultimately suffers from a more serious flaw, which we
conclude is determinative. In asking us to infer a
ceiling-setting agency intent on the basis of only
speculative predictions about the future effects on host
family participation of the application of state laws,
the plaintiffs are necessarily asking us to engage in
precisely the sort of “freewheeling judicial inquiry”
into the intention of the federal agency that we are
supposed to avoid in evaluating an obstacle
preemption claim. Whiting, 563 U.S. at 607; see Boyle,
487 U.S. at 507 n.3 (requiring at least evidence of a
“significant conflict”). This is not a case, we
emphasize, in which there is an extensive regulatory
history replete with agency commentary that provides
support for drawing the inference that the agency had
deliberately intended to set both a floor with which the
private actors would have to comply and a ceiling on
the additional regulatory burdens that a state could
impose on them. Compare Geier, 529 U.S. at 875-78,
885-86, with id. at 910-11 (Stevens, J., dissenting)
(“[T]he Court identifies no case in which we have
upheld a regulatory claim of frustration-of-purposes
implied conflict pre-emption based on nothing more
than an ex post administrative litigating position and
inferences from regulatory history and final
commentary.” (second emphasis added)). Rather,
neither the text nor the regulatory history
affirmatively indicates that the federal government
made such a deliberate, ceiling-setting choice, and,
other provisions indicate the opposite. In such
circumstance, speculation about future impacts
supplied by the plaintiffs themselves cannot satisfy
App-62
their burden to show the requisite—implicit—
preemptive intent.
IV.
We recognize that the DOS, as reflected in its
amicus filing, reads its current regulations—as well as
the regulatory history that we have just reviewed—
differently than we do. We thus consider the
contentions that the DOS makes, too. Geier, 529 U.S.
at 883; Williamson, 562 U.S. at 335-36; see also Kisor
v. Wilkie, 139 S. Ct. 2400, 2418 n.6 (2019) (reaffirming
courts’ ability to defer to “agency interpretations
advanced for the first time in legal briefs” where there
is “no reason to suspect that the interpretation [did]
not reflect the agency’s fair and considered judgment
on the matter in question” (quoting Auer v. Robbins,
519 U.S. 452, 462 (1997))).
In doing so, however, we are mindful that we may
not defer to an “agency’s conclusion that state law is
preempted.” Wyeth, 555 U.S. at 576. Instead, we must
attend to the “thoroughness, consistency, and
persuasiveness” of the agency’s explanation of how
state law affects the federal regulatory scheme that
the agency administers. Id. at 577. And here, as we
will explain, the DOS’s explanation, even if not in
conflict with any previously articulated and wellconsidered DOS explanation, fails to warrant a finding
of either field or obstacle preemption.
Like the plaintiffs, the DOS points to the fact that
the “Exchange Visitor Program” regulations for
certain other exchange visitor programs, unlike those
for the Au Pair Program, explicitly reference state and
local minimum wage laws. See 22 C.F.R.
§ 62.32(i)(1)(i). The DOS contends that this aspect of
App-63
the regulations shows that when the DOS “intends to
require payment in accordance with state and local
law for [other exchange visitor program] participants
the Department say[s] so expressly[.]” But, as we have
noted, by terms, the “Exchange Visitor Program”
regulations address only the obligations that sponsors
must meet in order to avoid the sanctions that the
DOS may impose on them under the regulations. The
regulations do not, by terms, purport to define the
obligations of the employers themselves that those
whom they employ may enforce against them. See
supra Section III.A.2.
The DOS does not attempt to account for this
disjuncture between the Au Pair Program’s focus on
the obligations of sponsors and the state wage and
hour measures’ focus on the obligations of the
employers to the domestic workers whom they employ.
The DOS merely asserts that, because sponsors of au
pair exchange programs are not required to ensure
that employers comply with state wage and hour laws,
while the sponsors of other exchange visitor programs
are so required, the participants in au pair exchange
programs may not independently ensure that their
employers do comply with those state laws. There is
no indication, however, that the participants in those
other exchange visitor programs would be prevented
from enforcing their state law wage and hour rights
against their employers unless the sponsors of those
programs were required to show that the employers of
those participants complied with them. The DOS thus
fails to provide a persuasive explanation for drawing
the negative inference that, because au pair exchange
programs are not required to ensure such compliance,
App-64
au pair participants may not enforce state wage and
hour rights against their employers.
The DOS also asserts that the federal obligations
on sponsors to require that au pairs are paid “in
conformance with the requirements of the FLSA”
based on the au pair having worked 45 hours in a week
should be understood to be a preemptive ceiling on
what the au pair participant may claim as a wage from
her host family. But, as we have explained, that
language simply does not by terms establish such a
ceiling. See supra Section III.B.2.
The DOS separately contends that the regulations
that govern the Au Pair Program should be construed
to be preemptive in the same way that the federal
statute that authorized the President of the United
States to impose sanctions on Burma that was at issue
in Crosby v. National Foreign Trade Council, 530 U.S.
363, 380 (2000), was construed to be. The DOS
contends that the regulations, like the federal Act in
Crosby, are “drawn not only to bar what they prohibit
but to allow what they permit.” Id. But, in Crosby, as
the Court expressly recognized, Congress’s purpose
was clear—to give the President full discretion in
regard to trade with “Burma.” Id. at 374-76. It is not
similarly clear that, in setting the compensation
obligation of a sponsor of an au pair exchange
program—enforceable only by the DOS against that
sponsor—the regulatory scheme’s purpose was to set
not only the minimum amount that the sponsor must
ensure that au pair participants must receive but also
a ceiling on what a state may require a host family to
pay that au pair participant. In fact, the wages and
hours obligation that the DOS imposes on sponsors is
App-65
pegged to the requirements of a federal statute that
itself makes clear that the floor that it sets for the
wage that employers must pay is not also a ceiling on
what states may require them to pay. See 29 U.S.C.
§ 218.
Turning to the DOS’s discussion of the regulatory
history, the DOS points only to the very same passages
in the agency commentary that we have already
reviewed. The DOS does not purport to examine the
context within which the passages appear. Instead, it
seizes on certain phrases in isolation. As we have
explained, though, considered in context, the passages
that the DOS invokes show that the agency intended
to establish a uniform rather than variable
compensation floor—pegged to the FLSA minimum—
that sponsors would be obliged to ensure was met. See
supra Section III.B.3.a. The agency interest in
ensuring that kind of uniformity, however, accords
with the agency having merely established a floor for
sponsors to meet. The DOS thus fails to explain why
these references affirmatively indicate that the agency
also had the requisite ceiling-setting intent.
There is, moreover, regulatory text that appears
to point directly against the DOS’s view. Specifically,
DOS appears to acknowledge that the au pair
regulations include an “employment component,” and
that the general “Exchange Visitor Program”
regulations’ requirement that sponsors who “work
with programs with an employment component” must
have “Responsible Officers” who have “a detailed
knowledge of federal, state, and local laws pertaining
to employment” applies to the Au Pair Program. See
22 C.F.R. § 62.11(a).
App-66
To respond to this seemingly problematic
language, the DOS contends that state wage and hour
laws only apply to “Exchange Visitor Programs” that
have additional, specific regulations regarding state
laws on top of the general regulations, such as the
summer work-travel program. According to the DOS’s
construction of the regulations, the general “Exchange
Visitor Program” regulations’ requirement that
sponsors have “Responsible Officers” who understand
all state laws that are relevant to their programs
applies to the Au Pair Program only “with respect to
matters” beyond wage and hour laws, such as state
negligence laws. But, insofar as this assertion by the
DOS depends on our granting the negative inference
that the plaintiffs ask us to draw from the
requirement that sponsors of other exchange visitor
program ensure that employers of the participants in
those programs do comply with such laws, we have
already explained why such an inference is
unwarranted. See supra Section III.B.2. And, insofar
as this assertion does not depend on that premise, it
cannot be squared with the plain text of the
regulations, for reasons that we have already
explained. See id.
Thus, while we do owe respectful deference to the
DOS’s own view of its regulations, the portions of the
regulatory text and the passages in the underlying
regulatory history that the DOS invokes to support
the assertions that it makes about them simply do not
support those assertions. And, of course, an agency’s
mere “conclusion that state law is pre-empted” is not
one to which we may defer. Wyeth, 555 U.S. at 576-77.
App-67
There is one last set of materials to which the
DOS—and, in passing, the plaintiffs—point: a series
of agency guidance documents and fact sheets
concerning changes to the federal minimum wage that
were issued by the USIA and the DOS between 1997
and 2007. The DOS does not contend that we owe such
material any deference. But, the DOS does contend
that these materials show that the Au Pair Program
regulations were long understood by the agency itself
to oust state minimum wage laws. We do not agree.
The 1997 agency documents merely clarify that
federal changes to minimum wage laws affect the
stipend and wage calculated in the 1995 regulations.
Thus, these guidance documents serve only to
reinforce the conclusion—already evident from the
text—that the DOS regulations apply only to
sponsoring organizations and that Au Pair Program
participants’ actual entitlement to wages that they
may enforce against their host families comes from the
FLSA—not the DOS regulations. In particular, the
documents warn host families that if they fail to “abide
by the . . . au pair stipend increases” they are “in
violation of federally-mandated minimum wage law,”
not DOS regulations. These documents thus show, at
most, that state wage and hour laws were not
considered, not that they were considered and
preempted.
The 2007 fact sheet does refer to a fixed-dollar
amount for the minimum weekly compensation in
explaining the impact of the raised federal minimum
wage on the Au Pair Program. That is so even though
the au pair exchange program regulations would
appear to permit that minimum to vary based on the
App-68
actual costs host families incurred. Relying on this
apparent discrepancy, the DOS and the plaintiffs—
though, again, only in passing—argue that these
guidance documents indicate that the agency had
imposed a national, uniform system for au pair
compensation.
But, the 2007 guidance is itself directed only at
sponsors. At most, it would suggest that sponsors were
obliged to enforce a weekly amount of compensation
that was higher than what the FLSA and its
regulations would require that the au pair
participants be paid. We thus do not see how that one
guidance document, insofar as it even comports with
the text of the DOS regulations themselves, could
supply the basis for inferring an intent from the Au
Pair Program to transform the non-preemptive FLSA
floor on the wage and hour rights that au pair
participants have vis-a-vis their host family employers
into a preemptive federal ceiling on those rights.
In fact, if we are considering past agency practice,
the DOS acknowledges that, when litigation first
arose to enforce a state wage and hour measure for the
benefit of au pair participants in 2015, a DOS
spokesperson publicly stated that au pair exchange
program sponsors must “comply with all other
applicable federal, state, and local laws, including any
state minimum wage requirements.” Lydia DePillis,
Au Pairs Provide Cheap Child Care. Maybe Illegally
Cheap., Wash. Post, Mar. 20, 2015. With regard to
communicating these requirements to au pair sponsor
agencies, moreover, the DOS spokesman went on to
say: “The Department has been communicating with
au pair sponsors to confirm that they are aware of
App-69
their obligations under the regulations—including
with respect to host family requirements—and will
continue to do so.” Id. 17
We recognize that the DOS asserts that it is not
“clear” that the agency’s public response at that time
represented a considered view. We do not suggest
otherwise. But, insofar as the agency means to invoke
other aspects of its past practice that it concedes do
not represent the kind of considered agency view that
merits deference to demonstrate how unthinkable it
has always been that the Au Pair Program could
function if state wage and hours laws could be
enforced against host families, this aspect of the
agency’s past history at least suggests that the
supposedly unthinkable was thought.
The regulatory history does suggest that the au
pair exchange program regulations were promulgated
at a time when it may not have been evident that there
were independently enforceable wage and hour
protections for domestic workers beyond those
established by the FLSA itself. See supra Section
III.B.3.a. State laws providing such protections are
never mentioned by the agency. But, the fact that the
agency may not have had those state laws in view does
17 Although a 2014 version of a State Department informational
pamphlet, the Wilberforce Pamphlet, stated that all recipients of
nonimmigrant visas “have the right to be paid the higher
amount” of the federal or state minimum wages, the State
Department took out that statement when it revised the
pamphlet in 2016. Compare U.S. Dep’t of State, 2014 Wilberforce
Pamphlet 7 (2014), https://internationalservices.ncsu.edu/files/
2015/03/Wilberforce-Pamphlet.pdf, with U.S. Dep’t of State, 2016
Wilberforce Pamphlet (2016), https://j1visa.state.gov/wp-content/
uploads/2017/01/Wilberforce_Pamphlet_October2016.pdf.
App-70
not permit us to conclude that the agency must
therefore have preempted them, at least given the
sponsor-targeting, floor-setting words that the agency
chose to use in the regulations and what the history
underlying those words reveals about the agency’s
focus. For, while we may assume that the DOS would
be free to preempt such state laws now by revising the
regulations, it may not simply ascribe to them,
retrospectively, a ceiling-setting character that
neither the text, nor the regulatory history, nor even
past practice demonstrates that they have had.
V.
We come, then, to the plaintiffs’ fallback grounds
for challenging the District Court’s ruling. They
contend that, insofar as we find the Massachusetts
state laws not to be preempted, the District Court
erred in denying their motion under Rule 59(e) for
reconsideration of the District Court’s decision on the
motion to dismiss or, in the alternative, for leave to
amend their complaint pursuant to Rule 15(a). We
review denials of both motions for abuse of discretion.
United States ex rel. Ge v. Takeda Pharm. Co., 737
F.3d 116, 127 (1st Cir. 2013). We find none.
The plaintiffs can succeed on a Rule 59(e) motion
for reconsideration—relief for which, we have noted, is
“granted sparingly,”—only if they can show that “the
original judgment evidenced a manifest error of law, if
there is newly discovered evidence, or in certain other
narrow situations.” Biltcliffe v. CitiMortgage, Inc., 772
F.3d 925, 930 (1st Cir. 2014) (internal quotations
omitted). Starting with the first of the motions, we
note that the plaintiffs premised it on the availability
of what they deemed “new evidence,” which included,
App-71
among other things, an affidavit from Stanley Colvin,
a former DOS official, and letters from current
members of Congress.
The plaintiffs contend that, in rejecting the
motion, it was “unreasonable” for the District Court to
decline to consider the Colvin affidavit, host family
declarations, and letters from members of Congress,
because of the “persuasive information” that they
contained. The plaintiffs further contend that the
District Court abused its discretion in failing to do so
because it “declined to consider documents outside the
pleadings in ruling on” the motion to dismiss pursuant
to Rule 12(b)(6) and relied on this rationale for
denying the motion for reconsideration. As the
plaintiffs put it, the District Court abused its
discretion in this regard because it made this decision
“without
even
reviewing
[the
Colvin
affidavit] . . . even though the District Court had
previously suggested at an earlier status conference
that the parties could agree to submit additional facts
outside the Complaint, and even though the District
Court did consider other materials outside the
pleadings in its decision.”
The District Court did consider a congressionally
commissioned report from the GAO that the Attorney
General cited, but which was not in the record, in
deciding the motion to dismiss. But, that document, as
the District Court noted, is publicly available and the
plaintiffs did not object to its inclusion. The documents
at issue in this challenge, by contrast, were not
publicly available, and the Attorney General did object
to their consideration and thus did not agree to their
submission.
App-72
The plaintiffs’ arguments concerning the denial of
their request to amend their complaint pursuant to
Rule 15(a) are similarly unavailing. Under that Rule,
District Courts “freely give leave [to amend the
complaint] when justice so requires.” Fed. R. Civ. P.
15(a). But, as we have explained, “once [a] judgment
has been entered, the district court is without power
to entertain any amendments unless the judgment is
set aside.” Deka Int’l S.A. v. Genzyme Corp. (In re
Genzyme Corp. Secs. Litig.), 754 F.3d 31, 46 (1st Cir.
2014). And here, judgment was entered prior to the
plaintiffs’ motion to amend and, thus, the District
Court denied that motion on that basis.
The plaintiffs do contend that the District Court
abused its discretion in denying this motion for leave
to amend by relying on our decision in Fisher v.
Kadant, 589 F.3d 505, 509 (1st Cir. 2009), because
there “the plaintiffs had two months between the
order on the motion to dismiss and entry of judgment.”
But, Fisher did not rely on the time between the order
on the motion to dismiss and the entry of judgment in
reaching its conclusion. See id. at 509-14. And, the
plaintiffs do not grapple with a series of other cases
applying Rule 15(a) also without regard for the time
between the order on the motion to dismiss and the
entry of judgment. See, e.g., In re Genzyme, 754 F.3d
at 46; Feliciano-Hernández v. Pereira-Castillo, 663
F.3d 527, 538 (1st Cir. 2011). Thus, we see no abuse of
discretion by the District Court on this score either.
VI.
The judgment of the District Court is affirmed.
App-73
Appendix B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
________________
No. 16-cv-11777-IT
________________
CULTURAL CARE, INC., ERIN CAPRON, and
JEFFREY PENEDO,
v.
Plaintiffs,
OFFICE OF THE ATTORNEY GENERAL OF THE
COMMONWEALTH OF MASSACHUSETTS; and
MAURA T. HEALEY,
Defendants.
________________
Filed: Aug. 1, 2017
________________
MEMORANDUM AND ORDER
________________
TALWANI, D.J.,
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
App-74
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
1 The Fullbright-Hays Act also is known as the Mutual
Educational and Cultural Exchange Act of 1961.
2 Plaintiffs Capron and Penedo are not parties to Counts III
and IV.
App-75
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
Regulations
Federal
Statutes
and
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
App-76
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
App-77
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
3 An employer is defined as “a person who employs a domestic
worker to work within a household whether or not the person has
an ownership interest in the household.” Mass. Gen. Laws ch.
149, § 190(a).
App-78
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(l); 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
4 Overtime pay is calculated at “at a rate not less than one and
one half times the regular rate,” pursuant to state minimum
wage laws. Mass. Gen. Laws ch. 151 § 1A; see also 940 Mass.
Code Regs. § 32.03(3) (incorporating Mass. Gen. Laws ch. 151,
§ 1A.
5 “Federal regulations have no less [preemptive] effect than
statutes.” Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458
U.S. 141, 153 (1982).
App-79
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
App-80
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. 871094 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
App-81
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, conducting research,
consulting, demonstrating special skills, or receiving
training” (emphasis added)).
In 1988, after the United States Information
Agency (“USIA”) (the agency which oversaw the J-visa
programs) piloted an “au pair” program, Congress
designated funds to continue it. Act of Oct. 1, 1988,
Pub. L. No. 100-461, 102 Stat. 2268 § 555 (1988).
Congress did so despite USIA’s concerns that the
program was inconsistent with the USIA’s authority
under the Fulbright-Hays Act. Exchange Visitor
Program, 59 Fed. Reg. 64,296 (Dec. 14, 1994)
(supplementary information), Pls.’ Opp. Ex. D [#21-4];
S. 2757, 100th Cong. § 301 (1988), Pl.’s Opp. Ex. B
[#21-2] (incorporated in Act of Oct. 1, 1988, Pub. L. No.
100-461, 102 Stat. 2268 § 555 (1988), Pl.’s Opp. Ex. C
[#21-3]). That authorization was accompanied by the
commissioning of a report on whether participants in
the J-visa programs, including au pairs, were
engaging in activities consistent with those authorized
App-82
by statute. Act of Oct. 1, 1988, Pub. L. No. 100-461,
102 Stat. 2268 § 555 (1988).
The General Accounting Office issued the
congressionally-commissioned report in February
1990, determining that the au pair program was
inconsistent with the intent of the Fulbright-Hays
Act. 6 Exchange Visitor Program, 59 Fed. Reg. 64,296
(Dec. 14, 1994) (supplementary information), Pls.’
Opp. Ex. D [#21-4]. 7 The USIA subsequently
concluded that the au pair program, as then styled,
was not authorized by the Fulbright-Hays Act. Id.
Shortly thereafter, Congress extended the au pair
program. Eisenhower Exchange Fellowship Program,
Pub. L. No. 101-454 § 8, 104 Stat. 1063 (1990); see also
59 Fed. Reg. 64,296.
Congress continued the program again in 1994
but also directed the USIA to promulgate regulations
governing the au pair program. Act of Oct. 25, 1994,
Pub. L. No. 103-415, 108 Stat. 4302 § 1(v) (1994). As
The Attorney General has cited the General Accounting
Office’s report as part of the record. See U.S. Gen. Accounting
Office,
GAO/NSIAD-90-61,
U.S.
Information
Agency:
Inappropriate Uses of Educational and Cultural Exchange Visas
18-19 (Feb. 1990), Defs.’ Mem. Ex. A [#20-1]. Cultural Care has
not objected to the inclusion of this report in the motion-todismiss record.
6
Both the State and Cultural Care have attached to their
respective memoranda copies of Federal Register materials.
Although, on a motion to dismiss, the court generally only looks
to the facts alleged in the complaint, Butler, 736 F.3d at 611, the
contents of the Federal Register are subject to judicial notice, 44
U.S.C. § 1507, and thus the court may consider these materials
without converting the motion to a motion for summary
judgment.
7
App-83
part of the promulgation process, and in response to
criticism “that the program displaces American
workers and amounts to no more than the import of
cheap foreign labor in the guise of an educational and
cultural exchange program,” the USIA confronted the
question of whether au pairs are employees subject to
the FLSA, 29 U.S.C. § 202 et seq. 60 Fed. Reg. 8550. In
issuing the interim rule, the USIA concluded that
“[a]n au pair living with a host family presents an
analogous relationship to that contemplated in 29
C.F.R. § 552.100,” the Department of Labor
regulations governing domestic service employees,
since amended. 59 Fed. Reg. 64,298. Before issuing the
final rule, the USIA sought further guidance from the
Department of Labor, which concluded that “an
employment relationship is established.” 60 Fed. Reg.
8550. The USIA deferred to the Department of Labor
on this point. 60 Fed. Reg. 8551 (citing Chevron v.
NRDC, 467 U.S. 837 (1984)). The final rule permitted
a room-and-board credit based on host families’ actual
costs. 60 Fed. Reg. 8551.
After Congress passed legislation in 1996 to
amend the FLSA to increase the federal minimum
wage incrementally over the next year, Minimum
Wage Increase Act of 1996, Pub. L. No. 104-188
§ 2104, 110 Stat. 1928 (Aug. 20, 1996), the USIA
amended its regulations with respect to compensation
rates “to ensure that there is no future confusion
regarding the payment of minimum wage.” 62 Fed.
Reg. 34,633. Under the regulations, “[s]ponsors shall
require that au pair participants . . . [a]re . . . paid in
conformance with the requirements of the [FLSA] as
interpreted and implemented by the United States
Department of Labor.” Exchange Visitor Program, 62
App-84
Fed. 34,634 (June 27, 1997) (now codified at 22 C.F.R.
§ 62.31(j)(1)). 8
Congress, in turn, did not permanently authorize
the au pair program until after USIA so amended its
regulations. Only then, in October 1997, did Congress
permanently authorize the au pair program. Act of
Oct. 1., 1997, Pub. L. No. 105-48, 111 Stat. 1165
(1997).
In sum, the federal statute and regulations
concern not just cultural exchange, but employment.
The question then is not whether the cultural
exchange aims of the legislation, but whether the
federal legislation as a whole—with both its cultural
exchange
component
and
its
employment
component—so occupy the field as to preempt state
labor protections.
Nothing in the Fulbright-Hays Act or the federal
regulations suggests that states may not supplement
federal protections provided to au pairs or that the
goals of cultural exchange would be thwarted by
additional labor protections by the states. To the
contrary, the federal regulations mandate compliance
with the requirements of the FLSA. 22 C.F.R.
§ 62.31(j)(1). The FLSA, in turn, allows states to
impose more stringent protections than those offered
at the federal level. 29 U.S.C. § 218 (“No provision of
Relying on this Department of Labor determination, the
Internal Revenue Service’s posted information on au pairs states
that “the au pair stipend constitutes ‘wages’ because an
employer-employee relationship exists between the au pair and
their host family.” Au Pairs, Internal Revenue Serv.
(Mar. 3, 2017), https://www.irs.gov/individuals/internationaltaxpayers/au-pairs.
8
App-85
this chapter or of any order thereunder shall excuse
noncompliance with any Federal or State law or
municipal ordinance establishing a minimum wage
higher than the minimum wage established under this
chapter or a maximum work week lower than the
maximum workweek established under this
chapter . . . .”). Allowing additional state protections is
entirely consistent with the type of police powers
traditionally held by the states. See Wyeth, 555 U.S. at
565.
Congress abolished the USIA effective in 1999,
and the federal cultural exchange programs were
transferred to the State Department. Foreign Affairs
Reform & Restructuring Act of 1998, Pub. L. No. 105277, div. G, §§ 1301, 1311-13, 112 Stat. 2681, 2681-776
(1999). The program’s current home at the State
Department, and before that, at the USIA, is of no
consequence. Although the J-visa status is rooted in
the goals of cultural exchange, no ambiguity exists as
to whether the au pair program also has an
employment component that must comply with
federal labor laws.
Cultural Care relies in part on a discussion of
uniformity of permissible credits for food and lodging
for au pairs in the 1994 and 1995 rules. Such reliance
is misplaced. When promulgating the initial
regulations, the USIA noted a “programmatic need for
a uniform wage” to “alleviate the family’s obligation to
maintain records.” 60 Fed. Reg. 8551. The formula the
USIA relied on in 1994 and 1995 (which prompted the
discussion of uniformity) was abandoned in 1997,
however, giving way to the current language that no
longer requires uniformity and instead requires au
App-86
pairs to be “paid in conformance with the
requirements of the [FLSA].” 22 C.F.R. § 62.31(j)(1).
Cultural Care’s reliance on Wisconsin Central,
Ltd. v. Shannon, 539 F.3d 751 (7th Cir. 2008), is
similarly misplaced. In that case, the Seventh Circuit
held that Congress had occupied the field of railway
regulation and therefore the state overtime wage laws
were preempted, even though minimum wage laws
typically fell within the state’s police powers. Id. at
765. It reasoned that “Congress’s expansive regulation
of the railways and the preemptive force of particular
laws” demonstrated the intent to preempt state
overtime laws. Id. at 763. In particular, there was an
“undeniabl[y]” “long history of pervasive congressional
regulation over the railway industry,” in which federal
“laws have touched on nearly every aspect of the
railway industry, including property rights, shipping,
labor relations, hours of work, safety, security,
retirement, unemployment, and preserving the
railroads during financial difficulties.” Id. at 762
(internal footnotes omitted). Here, however, where the
FLSA expressly applies to au pairs and the FLSA
allows for additional state labor protections, Cultural
Care has failed to establish that federal regulation of
the au pair program is so pervasive as to supplant the
Commonwealth’s traditional police powers. Cf. 29
U.S.C. § 213 (exempting certain classes of railroad
workers from FLSA overtime protections).
For these reasons, even when drawing reasonable
inferences in its favor, Cultural Care has failed to
allege facts sufficient to demonstrate that federal
regulation of the au pair program is so pervasive that
App-87
no room remains for supplementation by the states.
The field preemption claim fails.
2.
Conflict Preemption
Cultural Care next argues that the domestic
workers laws must yield due to conflict preemption.
Conflict preemption may occur “where the challenged
state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of
Congress.” Arizona, 567 U.S. at 399 (internal citations
and quotation marks omitted). 9 In passing on a
conflict-preemption claim, the court may not engage in
a “freewheeling judicial inquiry into whether a state
statute is in tension with federal objectives,” because
“such an endeavor ‘would undercut the principle that
it is Congress rather than the courts that preempts
state law.’” Chamber of Commerce of U.S. v. Whiting,
563 U.S. 582, 607 (2011) (quoting Gade v. Nat’l Solid
Wastes Mgm’t Assn., 505 U.S. 88, 111 (1992)). “[A] high
threshold must be met if a state law is to be preempted
for conflicting with the purposes of a federal Act.” Id.
(quoting Gade, 505 U.S. at 110).
“Conflict preemption is particularly difficult to
show when the most that can be said about the state
law is that the direction in which state law pushes
behavior is in general tension with broad or abstract
goals that may be attributed to federal laws.”
Fitzgerald v. Harris, 549 F.3d 46, 53 (1st Cir. 2008)
(internal quotation marks, brackets, and citations
omitted). Nevertheless, “[a] direct, facial contradiction
9 Although not argued here, conflict preemption also applies
“where compliance with both federal and state regulations is a
physical impossibility.” Arizona, 567 U.S. at 399.
App-88
between state and federal law is not necessary to
catalyze an ‘actual[ ]conflict’ within the doctrinal
parameters of the Supremacy Clause.” KKW Enters.,
Inc. v. Gloria Jean’s Gourmet Coffees Franchising
Corp., 184 F.3d 42, 49 (1st Cir. 1999) (quoting
Securities Indus. Assoc. v. Connolly, 883 F.2d 1114,
1118 (1st Cir. 1989)).
Cultural Care alleges that the domestic workers
laws interfere with the au pair program’s regulatory
scheme by imposing different and additional
requirements that interfere with the federal
government’s foreign policy goals. Cultural Care
alleges multiple areas of conflict between the domestic
workers laws and federal law relating to au pairs.
First, Cultural Care alleges that the definition of
a “domestic worker” under the domestic workers laws
as “an individual who performs services for an
employer for wage, remuneration, or other
compensation . . . to provide any service of a domestic
nature within a household,” 940 Mass. Code Regs.
§ 32.02, contradicts the definition of au pairs who are
“exchange visitors.” Compl. ¶ 31(a) [#1]. However,
because the federal regulations recognize that the au
pair program contains an employment component, no
conflict exists. See 59 Fed. Reg. 64,298 (concluding
that “[a]n au pair living with a host family presents an
analogous relationship to that contemplated in” the
Department of Labor regulations governing domestic
service employees).
Second, Cultural Care alleges conflict in the
provision clarifying that domestic workers who work
more than 40 hours each week are entitled to overtime
compensation, whereas au pairs do not receive
App-89
overtime, may not perform more than 45 hours of child
care services each week, and are paid a flat rate.
Compl. ¶ 31(b) [#1]. However, the federal protections
merely set a floor (based on federal minimum wage
and as assumed number of hours) to which states may
provide additional benefits. Maccabees Mut. Life Ins.
Co. v. Perez-Rosado, 641 F.2d 45, 47 (1st Cir. 1981).
States are not precluded from exercising their
traditional police powers to provide additional
protections not provided at the federal level. Id. In this
vein, the fact that the minimum compensation is
based on an assumed (and maximum) 45 hours of
work, rather than actual hours worked, does not
preclude the Commonwealth from providing
additional protections when an au pair works between
40 and 45 hours in a given week. Finally, the overtime
requirement is not set by the domestic workers laws
challenged here, but instead by the Minimum Fair
Wage Law, Mass. Gen. Laws ch. 151, § 1A.
Third, because the minimum compensation for au
pairs is calculated without regard to actual hours
worked, Cultural Care alleges conflict in the
requirement that mealtime, rest, and sleep periods
constitute working time when domestic workers are
required to be on duty for at least 24 consecutive
hours. Compl. ¶ 31(c) [#1]; see also 940 Mass. Code
Regs. § 32.03(2). However, no conflict exists here,
because au pairs may not work for more than ten
hours in a given day under the federal regulations. 22
C.F.R. § 62.31(j)(2). Further, as discussed above, the
fact that au pairs receive compensation for 45 hours,
regardless of the actual number of hours worked in a
particular week, does not preclude states from
App-90
providing additional protections based on actual hours
worked.
Fourth, Cultural Care alleges that the deductions
an employer may take under Massachusetts law for
lodging and meal costs actually paid conflict with
deductions permitted under federal regulations for the
au pair program. Compl. ¶ 31(d) [#1]. Cultural Care
alleges that the federal program calculates the weekly
compensation on the basis of 45 hours multiplied by
the minimum wage, minus 40% for room and board.
Id.; Compl. Ex. C [#1-5]; Ex. D [#1-6]. They derive this
formula from a 2007 Notice disseminated to au pair
sponsors regarding the incremental federal minimum
wage increase. Compl. Ex. D [#1-6] (Notice: Federal
Minimum Wage Increase). However, the Notice does
not specify the statutory or regulatory source from
which it draws this 40% formula. Id. Moreover,
Cultural Care has not pointed to, and the court has
not been able to find, any statute or regulation setting
forth the formula on which it relies. Instead, the 40%
figure appears to simply reflect an arithmetic
calculation of the maximum amounts that may be
deducted from wages under the FLSA, assuming all of
the FLSA’s requirements for such deductions are met.
And nothing in the FLSA suggests that a state’s
further limitations on such deductions would interfere
with federal regulations, which set a floor and not a
ceiling.
In support of its allegation that deductions under
the domestic workers laws conflict with federal
regulations, Cultural Care further argues that the
state limits on deductions for meals and lodging would
distort the cultural exchange goals of the program.
App-91
Any concern as to lodging is more theoretical than
practical. The au pair has accepted the host family’s
offer of lodging by seeking a J-visa as an au pair who
would reside with a host family. If the au pair sought
to move out of the home, he or she would presumably
be terminated from the au pair program. As to meals,
a “cultural exchange” does not mandate that an au
pair eat all meals with his or her host family, and
there is nothing in the record to suggest such a
culturally-limiting goal of the au pair program.
Nor is Cultural Care’s concern that the
regulations would emphasize strategy and negotiation
over cultural exchange well founded. Cultural Care
suggests that Massachusetts’ requirements would
result in the prospective au pair finding herself or
himself haggling over room and board credits with the
prospective host family prior to arriving in the United
States. But while Massachusetts’ limitations on
credits for lodging and meals may result in a higher
net wage for the au pair, they do not pose an obstacle
to the accomplishment and execution of the full
purposes and objectives of the au pair program. 10
Even if the domestic workers laws were to create more
complexity for sponsors in monitoring compliance by
host families, this would not pose an obstacle to the
accomplishment or execution of the goals of the au
pair program so significant as to warrant conflict
preemption. Indeed, the federal regulations require
sponsors to “have a detailed knowledge of . . . state[]
10 Moreover, even if such haggling were to occur, early
negotiations about credits for lodging and meals while the au pair
is in her or his home country does not present a conflict meeting
the high threshold required for state law to be preempted.
App-92
and local laws pertaining to employment.” 22 C.F.R.
§ 62.11(a).
Fifth, Cultural Care alleges that “the
Massachusetts minimum wage, which applies under
the [domestic workers laws]” so exceeds the federal
minimum wage on which the minimum au pair
compensation is based that it would make the au pair
program economically infeasible for many host
families, including Plaintiffs Capron and Penedo.
Compl. ¶ 31(e) [#1]; see also id. ¶ 32 (averring that the
$195.75 in compensation required under federal
regulations would climb to $445.50 if the domestic
workers laws were applied to au pairs). Cultural
Care’s assumption as to increased costs do not
necessarily apply, as host families interested in
cultural exchange (rather than a low-cost nanny) may
control their costs by limiting the number of hours of
child care they demand from their au pair. Nor are
these costs properly before the court where Cultural
Care has made no representation as to the
relationship between the $195.75 in compensation for
the au pair, the overall program fees incurred by the
host families, and the costs of alternative child care.
But in any event, the affordability of child care under
the au pair program is not a goal of the FulbrightHays Act, and possible increased costs do not stand as
an obstacle sufficient to meet the high threshold
required for conflict preemption.
Sixth, Cultural Care alleges that the domestic
workers
laws
would
impose
recordkeeping
requirements on host families, not mandated under
the au pair program. Id. ¶ 31(f). The FLSA, however,
not only includes its own recordkeeping requirements,
App-93
but also specifically provides that nothing in those
requirements “shall excuse any party from complying
with any recordkeeping or reporting requirement
imposed by any other Federal, State or local law,
ordinance, regulation or rule.” 29 C.F.R. § 516.1(c).
Thus, there is nothing in the state recordkeeping
requirements that presents an obstacle to the
accomplishment or execution of the goals of the
Fulbright-Hays Act or federal regulations.
Cultural Care further argues that the FulbrightHays Act and the federal regulations create “a central,
uniform process” for oversight of the au pair program,
which would be frustrated if the program were subject
to varying state or local rules. Pl.’s Opp. 21 [#21]. As
discussed above, Cultural Care’s emphasis on
uniformity is unavailing. Further, the references to
uniformity in the 1994 and 1995 rules do not lend
themselves to the conclusion that lack of uniformity
would pose anything beyond mere tension between the
federal and state laws, not an actual conflict.
Cultural Care also argues that the domestic
workers laws would frustrate the purposes of the
Fulbright-Hays Act because au pairs would receive
more benefits than United States citizens employed as
child care providers. It states that, unlike American
child care workers, au pairs also would receive
educational benefits, a guarantee of room and board,
limits on the number of hours they could work, and
compensation even if they do not provide child care at
all that week. But au pairs already receive these
additional benefits under federal regulations without
frustrating the purposes of the Fulbright-Hays Act.
Indeed, Congress may well have concluded that
App-94
cultural exchange would be furthered by better
working conditions for au pairs and that domestic
challenges to the cultural exchange program would be
better resolved if au pairs were not viewed as a cheap
source of labor. Ensuring that au pairs are not paid
less than other child care providers in the
Commonwealth is consistent, not inconsistent, with
these purposes.
Cultural Care also contends that regarding au
pairs as employees would conflict with federal
regulations requiring foreign nationals seeking a work
visa to show that their coveted position cannot be filled
by domestic labor. See 8 C.F.R. § 214.2(h)(1)(ii)(D),
(6)(i). However, this argument fails because the
federal government long has recognized that an
employment relationship exists between au pairs and
host families. Applying state domestic workers laws to
au pairs would not have an impact on this point.
Accordingly, Cultural Care has failed to
sufficiently allege that conflict preemption applies to
the domestic workers laws.
B.
Preemption by the Commerce Clause
As a second ground for preemption, Cultural Care
alleges that the domestic workers laws violate the
Commerce Clause. The claim fails whether on a
motion for dismiss for lack of standing or for failure to
state a claim, because Cultural Care has failed to
adequately allege that the domestic workers laws
discriminate against or impose an undue burden on
either interstate or foreign commerce.
The Commerce Clause authorizes Congress “[t]o
regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes.” U.S.
App-95
Const. art I, § 8, cl. 3. Within the Commerce Clause,
courts have recognized an implied prohibition on state
and local governments from enacting legislation
“inimical to the national commerce [even] where
Congress has not acted[,]” known as the dormant
Commerce Clause. Nat’l Foreign Trade Council v.
Natsios, 181 F.3d 38, 61 (1st Cir. 1999), aff’d sub nom.
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363
(2000).
1.
Interstate Commerce
With respect to interstate commerce, the dormant
Commerce Clause bars “state and local governments
from impeding the free flow of goods from one state to
another,” regardless of whether Congress has
affirmatively acted. Houlton Citizens’ Coal. v. Town of
Houlton, 175 F.3d 178, 184 (1st Cir. 1999). The
dormant Commerce Clause prevents state and local
governments from enacting “protectionist state
regulation designed to benefit in-state economic
interests by burdening out-of-state competitors.” Wine
& Spirits Retailers, Inc. v. Rhode Island, 481 F.3d 1,
10 (1st Cir. 2007) (quoting Grant's Dairy—Me., LLC v.
Comm'r of Me. Dep't of Agric., Food & Rural Res., 232
F.3d 8, 18 (1st Cir. 2000)).
Because they address only domestic workers
working within the state’s borders and do not
differentiate between those hired from within
Massachusetts and outside the state, the domestic
workers laws do not discriminate on their face against
interstate commerce in either purpose or effect. See id.
at 10-11. Because the domestic workers laws
“regulate[] evenhandedly and ha[ve] only incidental
effects on interstate commerce,” the court applies a
App-96
balancing test announced by the Supreme Court in
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Wine
& Spirits Retailers, 481 F.3d at 11. Under the Pike
balancing test, “assuming that the statute operates
evenhandedly to achieve a legitimate local interest
and that its effects on interstate commerce are
incidental, it will stand ‘unless the burden imposed on
[interstate] commerce is clearly excessive in relation
to the putative local benefits.’” Id. (alteration in
original) (quoting Pike, 397 U.S. at 142).
Cultural Care alleges that the domestic workers
laws unduly burden interstate commerce and
discriminate against it
as
a
Massachusetts-based
[p]rogram
[s]ponsor with significant business in
Massachusetts, by (1) interfering with
[Cultural Care]’s ability to conduct business
in Massachusetts in full compliance with the
[State Department] [r]egulations because of
inconsistent Massachusetts requirements;
(2) imposing additional and excessive costs
for administering the [au pair] [p]rogram in
Massachusetts; and (3) adversely impacting,
if not eliminating, [Cultural Care’s] ability to
conduct business in Massachusetts because of
the excessive costs imposed on potential
[h]ost [f]amilies.
Compl. ¶ 48 [#1].
At the outset, Cultural Care’s role as a
“Massachusetts-based [p]rogram [s]ponsor” undercuts
any allegation that the domestic workers laws impose
more arduous burdens on interstate commerce than
they do on intrastate commerce, or discriminate
App-97
against commercial activity by out-of-state residents
in favor of that of its own residents. See Wine & Spirits
Retailers, 481 F.3d at 12 (“After all, the plaintiffs are
all [in-state] residents and, if favoritism exists, none
of them could conceivably have suffered any
cognizable harm as a result of it.”). Further, none of
the three injuries alleged by Cultural Care violate the
dormant Commerce Clause, because the domestic
workers laws would treat out-of-state sponsors
operating an au pair program in Massachusetts no
differently from Massachusetts-based sponsors. An
out-of-state sponsor would be affected in the same
manner as an in-state sponsor, as would the host
families who comprise their clientele.
Cultural Care asser
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