LAWYER: WWU DEFIES LABOR LAW
This article originally appeared in The Western Front, Western Washington University's student newspaper, and can be found here: http://www.westernfrontonline.com/2016/04/19/lawyer-wwu-defies-labor-law/
The unpaid training courses required of students working in advising positions on Western’s campus do not appear to be following federal and Washington state labor laws, said David Mark, a Seattle-based attorney specializing in wage and hour law.
Academic student advisers, resident advisers, orientation student advisers, career services peer advisers, international peer advisers and Research Writing Center tutors are campus positions requiring students to take training courses that do not provide monetary pay.
These employees introduce incoming students, advise current students in their academics and future careers and provide tutoring and writing assistance for those who request it.
Senior Joseph Levy, studying political science and philosophy, works in the Research Writing Studio. As an out-of-state student, Levy disagrees with the cost of his training course and having to pay for the credits.
“I think I ended up paying more for that job last year than I made,” Levy said.
As of now, the university doesn’t pay their future employees for the time they’ve spent in the training courses, such as the Student Affair Administration 340 class, the research writing class or the online training sessions. Instead, students pay to take the classes as part of their quarterly tuition, something that potentially breaches conditions in Washington labor laws.
Academic student advisers, orientation student advisers, RAs and career service peer advisers are required to take the SAA 340 class during spring quarter. Students enroll in this course the school year before the start of their job in the fall. International peer advisers must complete unpaid, online training sessions over the summer.
Section 29 of the Code of Federal Regulations states for an employer to require an employee’s “attendance at lectures, meetings, training programs and similar activities” without compensation, all of the following conditions must be met:
- The training must be voluntary
- The meetings associated with the training must not be related to the employee’s current work
- The training must take place outside of the employee’s regular working hours
- The employee must not perform productive work during said training
Unpaid training courses contradict state labor laws which state training courses must be compensated. Students are required to register for classes that explicitly train them for a job benefitting Western, but are not paid for the time spent preparing.
“It looks really bad and I’m troubled by what’s going on,” Mark said. “I don’t think [these required classes] comply with the law.”
Tutoring positions in Western’s Research Writing Studio require a three-credit class during the employee’s first quarter at work and subsequent one-credit classes for the two quarters that follow.
As an out-of-state student, Levy pays $19,495 a year for tuition.
Taking 39 credits total for the year, Levy paid the university $2,499.36 in tuition for the five credits worth of classes required as training for his job.
Earning the $10 an hour starting wage for writing center tutors, Levy would need to work just shy of 250 hours to earn back the money he paid the university for his required classes.
Levy said he worked 140 total hours his first year, earning back $1,400 of the nearly $2,500 he paid for the writing center classes before taxes.
What all those numbers boil down to is Levy paid Western $1,100 to work a job that would ostensibly pay him, not the other way around.
“Most jobs in the real world, they pay you for training,” Levy said.
He said these required courses negatively altered his class schedule.
“That fall quarter [while taking the required three-credit class,] I couldn’t take all the classes I wanted to,” Levy said.
Ariel Moreau, an RA at Western studying psychology and sociology, said the class disrupted her school schedule as well.
“I think I ended up paying more for that job last year than I made.”
SENIOR JOSEPH LEVY
“I wanted to take a different class and I wasn’t able to because it would have put me over the credit limit,” Moreau said. “It put me behind by one class.”
In response to questions of the legality of of these required classes, Cocke said in an email that an employer’s wage and hour obligations are dictated by the federal Department of Labor’s 1993 Field Handbook provision 10b24(a), the Fair Labor Standards Act and the Washington Minimum Wage Act.
Cocke referenced the handbook provision which states “students serving as resident hall assistants or dormitory counselors, who are participants in a bona fide educational program, and who receive remuneration in the form of reduced room or board charges, free use of telephones, tuition credits, and the like, are not employees under the act.”
Since RAs fall under reduced room and board, they would not fall under the grievances, according to the act.
“Western concludes that when the content of the academic course enhances job performance in campus leadership roles, the students’ course participation is excluded from the definition of employment services under FLSA, and Western is not required to make any payment to these students as ‘employees’ for course participation time for which they are receiving academic credit,” Cocke said in an email.
In essence, Western considers students working in advising positions while taking the training course to be trainees rather than employees, which doesn’t require the university to pay student workers.
However, according to the U.S. Department of Labor, trainees are not considered employees if “they are not necessarily entitled to a job at the conclusion of the training period.” The students serving in the advising roles were hired before they registered for the SAA 340 class, entitling them to a job at the end of the training period and classifying students as employees under the Department of Labor law.
“They tell you at the end of the interview that you have to take this four-credit class,” said Riley Jessett, who works both in the Research Writing Studio and as an academic student adviser.
Lea Vaughn, a law professor at University of Washington specializing in labor and employment law, sees the university’s legal recourse as unsatisfactory. Vaughn believes the handbook provision is outdated.
Vaughn said there has been a rise in the number of cases brought by students regarding their eligibility for pay or overtime between 1993 and 2016.
“I don’t know that a court would pay attention to a 1993 handbook in light of all the other things that have happened,” Vaughn said.
As a legal scholar, Vaughn thinks these required classes merit further inquiry and Western is in a precarious position.
Other universities in Washington use similar methods to Western when training future employees. The University of Washington requires future RAs to attend an unpaid, three-credit training course. Washington State University requires RAs to complete an unpaid, two-credit training course.
“The university could be open for, if not liability, at least litigation costs, which in this day and age is something most universities prefer to avoid,” Vaughn said. “They’re almost inviting the students to file a complaint [with the Washington State Department of Labor].”
The SAA 340 class is a conglomeration of different class sections. Each class is tailored to the specific job students have applied for and the classes have their own course registration numbers, based on information from Western’s classfinder website.
A description of the academic student adviser training on Western’s website read in April 2015 that “material presented in the course is specific to the job skills and duties required as a student adviser and helps form a strong, cohesive team dynamic.”
“They’re almost inviting the students to file a complaint [with the Washington State Department of Labor].”
LEAH VAUGHN, LABOR LAW PROFESSOR AT THE UNIVERSITY OF WASHINGTON
These skills and duties differ for each section of the SAA 340 class. For example, the academic student advising section goes over materials pertaining to class credits and academic planning, while other sections don’t.
As a 300-level course, the SAA class provides upper-division academic requirements, yet student employees say the class doesn’t fulfill any of their academic requirements.
The Student Affairs Administration, the department the class is listed under, used to be a part of the Woodring College of Education but is now its own entity.
This split, along with the fact there are no majors or minors offered in Student Affairs Administration, means these credits only fulfill elective requirements, said Leah Keeghan, a Western academic adviser.
However, these classes could also help students fulfill the 60 upper division credits required to graduate from Western, so long as they haven’t already completed the requirement with coursework in their majors or minors.
Jessett works in both the Research Writing Studio and as an academic student adviser. He takes particular issue with the credit-exchange idea.
“They’ll tell you they’re paying the student in credits,” Jessett said. “I’ve never been able to understand why they say that. It doesn’t make any sense to me. You can’t pay someone in credits and it’s also not helpful for me to have blank credits.”
Ethically speaking, Cocke said the required classes are fair because they benefit students academically.
This is true for some students like Margaret Lewellen.
Lewellen works as an international student adviser, while she majors in sociology and minors in teaching English to speakers of other languages.
Lewellen had to complete the unpaid, online training course for her position, but saw it as beneficial to her personal ambitions, as well as her university job.
“It helped me for my career and in learning leadership skills and communication skills,” Lewellen said.
Other student employees see their unpaid classes in a different light. Levy is looking at going into law school and doesn’t think his required Research Writing Studio classes will help him in that pursuit.
“Learning how to work with writers is helpful but I can’t imagine that as a lawyer it would be that helpful considering I’ll be the one doing most of the writing for my clients,” Levy said. “I don’t think it’s directly applicable to my career goals but it’s helpful for the [writing center] job.”