Terms such as “modern slavery”, “wild west” and “cheap childcare” have dominated the headlines. Yet, as is often the case in legal discussions, reality is usually more nuanced than the slogans. Behind the current events lies a more fundamental question: what is an au pair in legal terms? And perhaps even more importantly: does that legal qualification still reflect today’s social reality?

What does the law say?

Under Belgian law, an au pair is not an employee. An au pair participates in a system of cultural exchange in which a young person stays with a host family for a limited period in order to become acquainted with the language, culture and society of the host country. At federal level, the residence aspects are governed by circulars of the Immigration Office (DVZ); as a result, the au pair falls outside the scope of the Employment Contracts Act of 3 July 1978.

Legally, the au pair system rests on three cumulative conditions that distinguish it from an ordinary employment relationship: (1) mandatory residence with the host family and full integration into family life, (2) limited tasks aimed at mutual cultural exchange and daily assistance, and (3) the receipt of pocket money rather than wages within the meaning of the Wage Protection Act of 12 April 1965. Those conditions are not mere formalities. They form the core legal foundation on which the system is built. An employee gets a badge. An au pair gets a house key. Legally, that makes a world of difference.

Why is living in so important?

Mandatory residence in the host family’s home is perhaps the most fundamental distinction between an au pair and an employee. A nanny comes to work and goes home. An au pair lives with the family. The legislator proceeds from the idea that cultural integration is only possible when the young person actually takes part in the family’s daily life. That is precisely why an au pair does not receive an ordinary salary, but board and lodging, supplemented by pocket money. The distinction is not merely semantic: it has direct consequences for the applicability of social security law, labour law and the tax treatment of the compensation.

An au pair shares the breakfast table. An employee shares the workplace. That is exactly where the distinction begins.

How does the system work in practice?

Many host families choose an au pair because they want their children to come into contact with another language, because they want to create an international experience within the household, and because they attach importance to cultural exchange.

In Belgium, an au pair may assist for a maximum of 4 hours per day and a maximum of 20 hours per week with activities for the host family. In addition, an au pair receives at least 450 euros per month in pocket money, on top of board and lodging, a private room, health insurance and other statutory obligations incumbent on the host family.

An au pair does not receive wages, but pocket money. The legal question, however, is not what it is called, but what it is paid for. When an au pair evolves into full-time childcare, performs structural household work that goes beyond the agreed tasks, and thus in reality turns into a live-in nanny or domestic worker used as cheap labour, the question arises whether one can still speak of cultural exchange. Indications that may point to a disguised employment relationship include fixed schedules that structurally exceed the statutory limit of 20 hours per week, tasks unrelated to family life in the strict sense, the absence of genuine elements of cultural exchange, and the factual replacement of professional childcare staff.

The law wrote a story about cultural exchange. In practice, a few extra chapters were sometimes added. Perhaps the question is not whether an au pair works. Of course an au pair works. The real question is: when does support within a family remain part of cultural exchange, and when is it legally regarded as labour?

Perhaps the reality is less black and white

Abuse must be addressed. But not every host family that opts for an au pair is looking for cheap labour. And not every au pair comes to Belgium in order to work. Many young people from Australia, New Zealand, Canada and the United States consciously choose a stay in Europe in order to learn a language, discover another culture, gain international experience and become more independent within the framework of a legally regulated “working holiday” residence status. If the au pair system does indeed need to be overhauled, that could possibly be a mature alternative.

The role of intermediaries: neutral intermediary or gatekeeper?

An agency does not merely bring together supply and demand. It recruits candidate au pairs, screens host families, assists with the matching process, provides information on the applicable rules and guides residence-related and administrative formalities. The intermediary therefore occupies a unique position between the au pair and the host family.

Those who create matches also create expectations.

Au pair agencies active in the Flemish Region in principle fall within the scope of the Decree of 10 December 2010 on private employment mediation (Belgian Official Gazette, 29 December 2010; entry into force on 1 January 2011), as subsequently amended by the Decree of 13 July 2012, and the Government of Flanders Order of 10 December 2010 implementing that Decree. This also applies to agencies that are not established in Flanders but are nevertheless active there (Article 4 of the Decree). The Decree contains no specific exception for au pair mediation, with the result that an au pair agency is in principle subject to all conditions of the Decree, including the prohibition on charging the au pair any fee in any form whatsoever (Article 5, 9° of the Decree).

From cultural exchange to economic service provision?

Not what one says, but what one sells. Anyone who sells cultural exchange as childcare should not be surprised when inspection services begin asking questions. It is precisely the task of those inspection services to verify the authenticity of the au pair system and compliance with all statutory provisions. Those services moreover possess extensive supervisory powers: before approval of the au pair’s activities, the host family must declare in writing that it agrees to access to the home by supervisory officials. This does not abolish the constitutional inviolability of the home (Articles 15 and 22 of the Constitution), but it does mean that the host family grants prior informed consent within a legally regulated framework.

Can an intermediary be held liable?

At first sight, the answer seems simple. An au pair agency is not the employer. It does not pay wages. It does not exercise employer authority. But today matters are no longer that simple. Modern intermediaries do far more than merely bring together supply and demand. They recruit candidates abroad, screen host families, guide administrative procedures, advise on the applicable rules and actively promote the system on the market. When does mediation end and facilitation begin? The question “who is the legal employer?” is increasingly replaced by the question: who made this situation possible?

Professional actors are increasingly expected to provide correct information, to know the applicable rules and to take signs of abuse seriously. Those who present themselves as experts will increasingly struggle to explain why they knew nothing.

The intermediary’s special responsibility in labour migration

By definition, the au pair system is a system of international mobility. The au pair is generally a young foreign national who depends on the host family for residence status, housing and daily living conditions. That relationship of dependence makes the au pair structurally vulnerable and thereby increases the legal responsibility of the professional intermediary who brings the relationship into being.

Article 5, 11° of the Decree of 10 December 2010 expressly provides that an agency may only mediate for workers of foreign nationality insofar as the rules concerning the employment of foreign workers are complied with. An agency that recruits candidate au pairs outside the European Economic Area without verifying the applicable residence and labour-law requirements acts in breach of that provision and exposes itself to a whole range of criminal and administrative sanctions under Chapter 5 of the Decree, including prison sentences of 6 months to 3 years for operating without a licence and a doubling of the penalty in the event of reoffending.

Where cultural exchange in practice turns into labour migration because the au pair is structurally used as a worker, the intermediary may moreover face criminal prosecution under the federal anti-trafficking provisions, in particular where use is made of the vulnerable position of the person concerned.

In addition to the express statutory obligations, a general duty of care rests on the professional intermediary that goes beyond mere formal compliance. That duty of care includes at least: actively screening host families for compliance with the legal conditions, correctly informing the candidate au pair before departure of their rights and the available complaints procedures, and taking signs of abuse seriously and following them up. Anyone who fails to observe that duty of care may incur civil liability for the damage suffered by the au pair as a result, even in the absence of a formal employment contract.

The intermediary is no longer a neutral messenger. It is a gatekeeper, with all the responsibility that entails.

Protecting without demonising

The challenge is to tackle abuse without reducing an entire system of cultural exchange to a story of exploitation. Every sector has its bad apples. The question is whether that means the whole tree should be cut down. Anyone who markets cultural exchange as childcare should not be surprised when inspection services begin asking questions. Equally, anyone who judges the system solely by its abuses should take care not to destroy more than they seek to protect. That is precisely where the future of the au pair system will be decided.

Andy Matthijs
A:M Lawyers