Monthly Archives: October 2015

October 29, 2015

NLRB To Revisit Whether Graduate Teaching Assistants May Collectively Bargain

Gutierrez_SBy Steve Gutierrez 

Seeking to overturn long-standing precedent, the National Labor Relations Board (NLRB or Board) recently agreed to review whether graduate students who work as teaching or research assistants at universities are “employees” for purposes of voting for a union. The United Auto Workers (UAW) is seeking to represent student employees at The New School, a not-for-profit operator of higher education institutions in New York. Like a dog with a bone, the current NLRB is unwilling to give up on finding coverage for grad student assistants, despite two rejections of the representation petition by the Regional Director. 

Is It Work or Educational? 

The UAW petitioned to represent all student employees who provide teaching or research services at The New School. The proposed bargaining unit includes teaching assistants, fellows and tutors, as well as research assistants and associates. 

The facts related to these positions are as follows: 

  • About 350 individuals work in the proposed bargaining unit
  • The positions typically require between 10 and 20 hours of work per week
  • Each graduate assistant position typically lasts for one 15-week semester, but many graduate assistants are renewed for multiple semesters
  • The New School provides approximately $5 million annually to grad students in these positions
  • Each faculty member is allotted up to $5,100 per year to be used for student assistants
  • Teaching assistants are paid $4,500 per semester; teaching fellows receive $5,500 per semester, and tutors are paid an hourly rate, typically $17.00 per hour
  • Research associates can receive stipends of up to $40,000 per year due to grants from the federal government
  • Graduate assistants must provide I-9 forms to be eligible for the positions
  • Payments to the graduate assistants are made through a payroll account and taxes are withheld
  • Payments are disbursed biweekly but do not vary based on the number of hours worked (except for tutors)
  • Graduate assistants are not required to track, and the university does not monitor the amount of time spent on their duties
  • Applicants for these positions must maintain a minimum GPA
  • Some are selected using a formal process of interviews and appointment letters from the Human Resources department while others are offered positions more informally directly from a professor
  • Selection for the position is not dependent on financial need 

When the UAW first petitioned to represent this group of student employees in December 2014, the Regional Director for the New York region dismissed the petition based on the NLRB’s 2004 decision in Brown University, which held that graduate student assistants were not “employees” under the National Labor Relations Act, and therefore, could not be unionized. The 2004 Board had decided that the graduate assistants had a primarily academic relationship with their school, not an economic, work-related one. Case closed, right? Wrong. 

Will Graduate Assistant Precedent Be Overturned? 

In March 2015, the Board reviewed the initial dismissal of the petition and sent it back to the region for a hearing. The Hearing Officer heard testimony and received evidence during a seven-day hearing, but in late July, the Regional Director found that Brown University still controlled, and dismissed the petition again. 

The UAW requested (again) that the Board review the dismissal of its representation petition. On October 21, 2015, on a 3-1 vote, the Board granted the request for review, finding that it “raises substantial issues warranting review.” 

The vote goes along political lines, with the three democratic members voting to review the graduate assistant issue and the sole republican member dissenting. (Note: the Board is currently short one member.) In his dissent, member Philip Miscimarra wrote that the sole basis for the UAW to seek review is its desire to have the Board overrule Brown University. Miscimarra believes there is no reason to overturn Brown University, pointing, in part, to the prevailing view for more than 40 years that graduate student assistants are not statutory employees, except for a four-year period from 2000-2004 when the ruling flip-flopped in favor of finding they were employees. 

Is another flip-flop likely? It very well could be, given that the current majority of the Board continues to look to expand the reach of the NLRA. But even if the Board should find that graduate student assistants are statutory employees, it will need to address an argument by The New School that they are “casual” or “temporary” employees which would still deny them union representation. 

We will continue to follow this case and pass along any developments as they occur.

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October 20, 2015

Colorado Vacation Policies: Use-It-Or-Lose-It Policy Hinges On When Vacation Is “Earned”

In recent weeks, the Colorado Division of Labor indicated that it was taking a new position when enforcing wage claims based on an employer’s vacation policy. The specific issue has revolved around whether a use-it-or-lose-it vacation policy—i.e., a policy where an employee cannot roll-over some or all earned vacation from year to year—is lawful in Colorado. 

In response to inquiries about its position on such policies, the Division recently posted FAQs on its website stating that a use-it-or-lose-it vacation policy does not necessarily run afoul of the Colorado Wage Protection Act. But if an employee challenges the validity of the policy, the determining factor will focus on when the vacation pay is earned. 

Division of Labor Leaves Many Questions Unanswered

 According to Colorado’s Wage Protection Act, vacation pay “earned in accordance with the terms of any agreement” are “wages.” As a result, many Colorado employers have in place use-it-or-lose-it vacation policies, in which an employee may accrue a certain amount of vacation or paid time off (PTO) each year, but some or all of that vacation time will not roll-over into the following calendar year. The reason for such policies is simple: it avoids employees banking large sums of vacation or PTO, which is typically paid out upon separation from employment. Until recently, the Division had not taken a formal position on such policies. 

However, given the recent changes to the Wage Protection Act, the Division is responsible for adjudicating wage claims, albeit the jurisdiction is limited to claims for $7,500 or less. In light of that change, and as many people likely saw, the Division issued guidance informally in recent weeks concerning use-it-or-lose-it vacation policies. After numerous legal alerts were sent out, the Division took a step back, as reflected in a Denver Post article.  

Earlier this week, in an effort to clear up the confusion, the Division issued two FAQ’s, as noted above. Those FAQs specifically address whether Colorado employers may have use-it-or-lose-it provisions in their vacation policies. The Division answered that question yes, as long as any such policy is included in the terms of an agreement between the employer and employee. That clarification seems helpful, as it states that use-it-or-lose-it vacation policies are permissible under the Wage Protection Act. 

The first FAQ, however, goes on to state that a use-it-or-lose-it policy may not deprive an employee of earned vacation time and/or the wages associated with that time. It also states that any vacation pay that is “earned and determinable” must be paid upon separation of employment. The terms of an agreement between the employer and employee will determine when vacation pay is earned. 

This part of the FAQ is less helpful. It raises many questions about how an employer may structure a use-it-or-lose-it vacation policy in a way that will not deprive employees of any earned vacation. The Division’s position appears to be that once vacation is “earned,” it cannot be lost. 

The second FAQ addresses what factors the Division will use to determine whether a specific use-it-or-lose-it policy is permissible. The Division first will look to whether the policy states when vacation pay is earned. If the policy does not state or is ambiguous as to when vacation pay is earned, the Division will consider the following factors in determining whether the use-it-or-lose-it policy is permissible: 

  • The employer’s historical practices
  • Industry norms and standards
  • The subjective understandings of the employer and employee
  • Any other factual considerations which may shed light on when vacation time becomes “earned” under the agreement in question. 

Take Aways For Use-It-Or-Lose-It Vacation Policies 

Because of the many unanswered questions related to the validity of use-it-or-lose-it vacation policies, Colorado employers should exercise caution. Points to consider include: 

  • The Division’s jurisdiction is limited to claims of $7,500 or less
  • The Division’s interpretation of the Wage Protection Act and vacation policies may or may not be accepted by courts, and
  • To avoid any potential challenge, consider a maximum accrual policy instead of a use-it-or-lose-it policy (e.g., once an employee hits a certain accrual, the employee will not earn more vacation or PTO until the employee falls below the maximum) 

The best practice if you want to maintain a use-it-or-lose-it vacation or PTO policy is to review your policy with experienced employment counsel to determine if/how to revise your policies in light of the new guidance from the Division.

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