
NLRB rules graduate students are employees - lvs
https://www.washingtonpost.com/news/grade-point/wp/2016/08/23/are-they-students-or-are-they-employees-nlrb-rules-that-graduate-students-are-employees/
======
caseysoftware
This has always made sense to me looking at it from a 1099 vs W2 point of
view. (Those are the independent contractor vs employee tax forms in the US.

Grad students who teach can't determine their own schedule, they can't
accept/reject individual tasks, they don't have multiple customers, and they
are receiving training throughout.

Ref: [https://www.learnvest.com/knowledge-center/the-difference-
be...](https://www.learnvest.com/knowledge-center/the-difference-
between-a-1099-and-a-w-2/2/)

My only surprise is how long it took this to happen.

~~~
gnicholas
I'd agree that IRS rules could be relevant, though the 1099/W2 distinction
isn't the one I'd look to. The question there is "how focused is the service
provider on providing services to just this one recipient (i.e., the putative
employer)?"

That question is orthogonal to the question of whether one is primarily a
student or primarily a worker (either employee or IC—it doesn't matter), which
is more relevant to the recent NLRB ruling.

The Supreme Court addressed this issue in 2011 in the Mayo Clinic case [1].
They held that medical residents do not qualify for the "student exemption" to
FICA (a certain type of payroll withholding). At first glance, this seems to
support the NLRB ruling regarding grad students, insofar as it indicates that
people who work and learn can be classified as primarily workers.

However, I think it might ultimately undermine the NLRB decision. In the Mayo
Clinic case, the Supreme Court basically said: there are people who are
students who get paid, and there's a FICA exemption for them, but medical
residents are a different kind of beast—they're more like workers.

This line of reasoning implies that students who do qualify for the FICA
exemption—presumably including grad students who receive stipends—are more
like students than workers in the view of the Supreme Court. That would mean
that they would be less likely to be owed the right to unionize, which is a
protection granted to workers, not students.

Caveats: The Mayo Clinic case was decided under a specific provision of tax
law (not labor law), though it did involve the general question of "what is a
student?". Also, I am now a "recovering lawyer", no longer in practice.

1:
[http://www.clhe.org/marketplaceofideas/uncategorized/supreme...](http://www.clhe.org/marketplaceofideas/uncategorized/supreme-
court-upholds-irs-regulation-saying-medical-residents-are-students-and-
subject-to-fica-tax/)

------
levbrie
Many of the comments so far revolve around whether graduate students are
students or not, as if being a student and an employee are somehow mutually
exclusive or the fact that graduate students also take classes mean they must
be equivalent to undergrads and ought to be given the same treatment. Clearly
this is not the case. Acquiring the specialized knowledge that a PhD entails
requires tremendous sacrifice (and, in the case of PhDs hoping to become
professors, it often ends in tremendous disappointment). Universities have two
primary functions - conducting research and teaching. This is the job of the
university. Undergraduates don't have the specialized knowledge required to
teach or to contribute substantially to research. Graduate students, however,
do both of these jobs. Indeed, they are absolutely essential to the
functioning of the university. And while the average time to completion for
science and engineering doctorates hovers around 5 years, it's not uncommon to
find humanities PhDs who take 8 years or more to complete their dissertations.
This isn't because they're lazy. This is because the competition for academic
posts is brutal, the expertise expected of them is vast, and, more to the
point, because they're busy working. Universities are subjecting students to
increasingly unjustifiable tuitions and pocketing massive profits couched as
expanded endowments. Pretending like graduate students are just really smart,
really old, really slow-to-catch-on interns and not a part of their extremely
lucrative business operations just adds insult to injury.

~~~
sldivzklhc
>Undergraduates don't have the specialized knowledge required to teach or to
contribute substantially to research. Graduate students, however, do both of
these jobs.

I don't think grad/undergrad is the right distinction here. I was employed by
my undergrad-only liberal arts alma-mater as a teaching assistant and research
assistant. And the college employed many of my classmates in other positions.
We weren't exploited like many graduated students are, but another institution
could have treated us worse.

~~~
Chronic9q
> college employed many of my classmates in other positions

And how many classmates were not employed? Far more. So yes, the
grad/undergrad distinction is valid. Undergrads are often assigned boring
research jobs and are paid less.

~~~
cjslep
> Undergrads are often assigned boring research jobs and are paid less.

I agree paid less, but disagree about "boring" research jobs. It probably
depends on your school and your major. Nuclear Engineering at NC State got me
to research molecular dynamics GPU techniques (this was around 2010) to
simulate rare events (such as radiation-resistant material interactions) in
order to get real-world simulation times to the order of milliseconds, which
is a whopping 1000x speedup from the usual microseconds. I got access to the
school's supercomputers just like any other physics grad.

My work later moved to the CASL (Consortium for Advanced Simulation of
LWRs[0]) umbrella, and I was not the only one. None of the topics were boring,
and the general impression I got from the department head was that undergrads
were as capable but just requiring slightly more guidance.

It was a great funnel for getting undergrads to continue their research to
grad school and ultimately to a PhD. I did not continue, but still have
several friends that are pursuing their PhDs.

[0] [http://www.casl.gov/](http://www.casl.gov/)

------
StillBored
About time! Now we just need to get rid of the rules, that the work done by
the students is owned by the university..

Which for most students doesn't matter, but I know that in computer
engineering a number of my friends intentionally avoided things that might
have commercial significance because they wanted to keep the ideas for
themselves. Getting a MS/PhD is enough of a financial ding (probably on the
order of $200-$400k) that the insult of both paying the school _AND_ giving
them the resulting work is just to much.

~~~
_delirium
In practice people I know who've built startups on top of tech they built at
universities haven't run into problems. A common strategy is to open-source
any code you might want to later use commercially, as a way of throwing it
over the fence. Your startup can then use it on whatever terms you open-
sourced it under (probably BSD/MIT, if you want to give your later self
maximum flexibility). Granted, so can anyone else. But usually the research-
prototype code itself isn't enough to build a competitor, and the common case
for research code open-sourced by a grad student in some random .tar.gz code
dump on their website (or worse, included as a file appendix to their thesis),
is that nobody else will even so much as look at it.

The university may have to approve this, but at major CS departments approving
students to open-source the code that goes with their thesis is pretty rubber-
stamp, at least if it's self-contained.

~~~
lvs
Intellectual property generated in other fields does not benefit from this
kind of liberal license loop-hole, unfortunately. We cannot open-source all
applied science according to the current rules.

~~~
_delirium
Areas where universities are aggressive about patenting definitely have other
problems, yeah. Fortunately in CS academia, software patents are relatively
uncommon. Not unheard of, but only a small percentage of non-hardware theses
end up involved in a patent filing.

------
mabbo
Sets up for the (in my opinion) far more interesting debate: are college
sports players employees?

~~~
6stringmerc
I thought the Northwestern University Football Team[1] case was in part
addressing that or making thing more complicated? Not saying it's settled or
whatnot, just that maybe it's at play too.

[1] [http://www.si.com/college-
football/2015/08/17/northwestern-f...](http://www.si.com/college-
football/2015/08/17/northwestern-football-players-union-nlrb-ruling-analysis)

------
jasonmp85
Does this similarly apply to medical fellowships?

There's a weirdness that residents are considered employees, but if you want
to go into a specialty requiring a fellowship, you're back in the "student"
category.

------
maverick_iceman
Higher education is ironically one of the least regulated industries in the
US. Classifying employees as contractors (adjuncts and grad students),
importing cheap labor from overseas, sky-high compensation for administrators
who add little value, easy loans to barely adult students without any
collateral - the list goes on and on.

~~~
sackofmugs
Maybe that's a good thing that it's self-governing and less regulated then.
Research universities contribute a ton of research and teaching to society.
Can't say the same about other industries.

~~~
marcoperaza
You're kidding right? "Other industries" have literally built pretty much
everything you see around you, generated the knowledge to do it, and train
millions of workers in it.

~~~
sackofmugs
You mean after being educated at research universities for years, learning
from the academic literature and textbooks, and meeting collaborators in
classes? Like Google, right? Or Facebook? Or do you mean Wall Street? Or
Boeing?

Or did some self-taught teenager "generate knowledge" in his spare time from
scratch?

~~~
marcoperaza
In the tech industry alone, Google and Microsoft run top-tier research arms.
And before them, Bell Labs and others did at least as much as universities to
advance the field.

------
takk309
I am sure that this will be an unpopular opinion but I think this is wrong.
Graduate students are students. They are paying to be in school. They may be
paying for it with money gained from the University but they are still
students. Should an undergrad that is on a university scholarship be
considered an employee too? How are the economic realities of grad school any
different from undergrad? If you can't afford to go to school, you have a few
choices: debt, poverty, or don't go to school. If you have a family, you have
to factor them into your choice too.

All this being said, I went to graduate school and received a master's degree
in Civil Engineering. I was able to be fully funded through the research that
I performed and did not have to pay a dime in tuition. I also received a
stipend that, if I was very frugal, was enough to pay my bills and feed
myself. During this time I lived with four roommates and road my bike as much
as I could to save money.

Another item of note is that in Montana, where I got my degree, engineers
registered with the State are bared from joining unions of any kind. Even as a
grad student, I was registered as an EI, therefore I would not be eligible to
join the grad student union.

~~~
panglott
In the humanities, 75% of courses are taught by grad students and adjuncts. I
think the split between them is about half and half.

An overwhelming percentage of the actual work of higher education is done by
grad students and contingent faculty.

~~~
nommm-nommm
This varies by school. In my school, from what I saw, 0% of humanities courses
were taught by grad students. I only had an adjunct professor once and it was
for a CS class. He wasn't a grad student either.

------
danieltillett
Interesting that nobody has commented on what this will likely result in -
fewer grad students. If this is a good or a bad thing depends on your point of
view.

Edit. Stupid typo :)

~~~
jessaustin
Wouldn't fewer grad students lead to fewer professors and less income for
universities? Why would administrators accept that?

~~~
danieltillett
Yes :)

I did day it depended on your point of view. As a grad student less
competition is good - if you are part of those exploiting grad students then
not so good.

~~~
an_cap
I hope you realize that in addition to being bad for those who exploit grad
students, it is also bad for the marginal grad student who is no longer going
to be able to go to grad school. For a lot of us foreigners, grad school in
the US is essentially our only ticket to a life in the first world. So I
implore you to consider the impact of a policy that results in fewer grad
students on the marginal ones - typically foreigners or minorities or females
in male heavy fields.

~~~
aianus
Does grad school qualify you for a different visa? As far as I know, a
bachelor's is sufficient for a TN or H1-B.

------
sbwm
I guess I thought this was common. Maybe this development is private
universities only? Where I went to school (Michigan) many (most IIRC) of the
grad students were in the union:
[http://www.geo3550.org/](http://www.geo3550.org/)

------
Animats
College football players, however, are not. The NLRB decided that one last
year.

~~~
Finnucane
Right, because for the schools with the biggest sports programs, those
programs are _serious_ cash cows. Sharing that with the students would be way
bad! In some states, the head coach is the _highest paid public employee_.

------
sbuttgereit
I haven't seen this in the comments so far, and admittedly I'm not so familiar
with the issues at stake in the university context.... still I'll mention
it...

I suspect that opposition to this is the increase of cost and employment
related regulatory burden for universities. Much of the discussion I'm seeing
is whether or not certain students qualify for employment status (and
presumably the benefits that come with that status). However, will not
treating grad students as employees reduce the opportunities available for
grad students? Usually when labor costs increased like this marginal positions
are eliminated. Seems like if research positions are more expensive, research
opportunities correspondingly have to be reduce.

Sure, the next shoe to drop is spend more tax money on research (given the
dependency of many universities on the public treasury), and the one after
that is tax more/borrow more... but even if that happens over time, the cost
increase seems much more immediate. (Yes, you could raise fees and tuition,
but in today's environment that would also lead to demands for greater tax
expenditure.)

Anyway, curious if anyone is thinking about the other side of the equation.

~~~
CJefferson
The same argument can be made of any employee of any company. If we did away
with some employee rights, the company would save money.

Here in the UK this problem is clearly solved -- if you teach, you are an
employee.

------
einpoklum
A very similar issue is just now coming up for discussion in the Country-wide
Labor Court in Israel:

The question is whether Graduate Students, who get a monthtly stipend and have
the obligations of an employee essentially (and who used to be recognized as
employees) are indeed employees, despite the university's refusal to recognize
them as such.

Here is some background material in English:
[https://app.box.com/s/osnf6xfqgqgvmnat6ldq](https://app.box.com/s/osnf6xfqgqgvmnat6ldq)

I'm involved in the proceedings, having been the vice-chairperson of the
Graduate Union at the university in question (the Technion). Whoever is
interested in more details (including the official court rulings, briefs,
affidavits etc.), or in collaboration in writing something on these matters is
welcome to write me at eyalroz at technion dot ac dot il .

------
twblalock
In some states and university systems, grad students have been unionized and
treated as employees for decades. So while this is a big change for some
universities, it won't have a significant effect on others. I wouldn't expect
this ruling to have a seismic effect on academia as a whole.

------
beamatronic
Do most graduate students receive a W-2 or a 1099 at tax time?

~~~
colanderman
I didn't while working on my PhD at Brown. They were actively hands-off about
the tax implications of a stipend, telling new students nothing, and if asked,
saying that it was the students' responsibility to figure it out. Difficult
enough for me as a US citizen, probably hell for a foreign student on a visa.

It's not clear that this ruling would force Brown and others to give W-2s or
1099s, but I hope it does because fuck them for ignoring students' legal
needs.

~~~
semi-extrinsic
I did my PhD in Norway, where PhD students are considered employees. However,
the university is foot-deep in have-my-cake-and-eat-it-too land.

We had department heads, even heads of faculty, tell us in front of a hundred
students that yes, you are expected to work more than the amount specified by
law and your official contract. And no, you will not be paid overtime. And
yes, you have to fill out a form saying when you will take your legally-
mandated five weeks of holidays. But oh, no, we don't want you to actually
_take_ all those weeks as holidays, and no, you can't get a student bus card
either, you're employees!

Only good that came out of it for me was a bag full of ammo whenever someone
in admin complained that I hadn't filled out some stupid paperwork or
whatever. A short crass email pointing out their blatantly illegal public
statements, together with the words "or I'll contact my union's free lawyer
service" shut them up quicker than contact cement.

~~~
Joky
I think in France it is more on the "best of both-side" in the sense that
you're employee _and_ student (you get a student card, with the associated
benefit). I can have changed in the recent years though.

~~~
semi-extrinsic
I'm sure details vary between countries and even universities. But for me, and
I think essentially everyone, a fundamental part of being a PhD student is
having to work long hours outside the applicable working time regulations.
What is the point of promoting a group to employee status when everyone knows
this group will be regularly violating the employee rights law (whether US,
UK, EU etc.)?

~~~
Joky
For one, in France (as I remember...) it implies that the PhD is considered as
"professional experience" (i.e. if you work for the government later you start
as if you have 3y experience in the field), you contribute for you retirement,
and you have a legal right to 5 weeks paid vacation.

------
doggydogs94
I suspect that this will lead to students paying taxes on scholarships (and
other graduate student funding) at some point in the future. It was a "feel
good" win in the short run, but it will be harmful for students in the long
run.

~~~
eaq
What? All of my fellowships/assistantships as a PhD student have always been
considered taxable income.

------
j7ake
For comparison, PhD students in other universities such as ETHZ have salaries
of >$60000 per year and includes benefits such as >20 days of vacation and a
pension.

------
kchoudhu
Is this retroactive? My wife would love to go back and get 7 years of FICA
paid for.

------
jostmey
FINALLY!!!!!

------
Finnucane
My wife, who is an admin at an academic lab, will, however, be looking forward
to informing the students in her group that this means that they really do
only get two weeks vacation time, and actually need to show up at the office.

~~~
j2kun
Most graduate students I know get no vacation time.

