Monday, June 25, 2012

Higher Ed: Handbook for Student Law

Castagnera, James Ottavio
New York, Bern, Berlin, Bruxelles, Frankfurt am Main, Oxford, Wien, 2010. X, 255 pp.Education Management: Contexts, Constituents, and Communities. Vol. 6 General Editor:M. Christopher Brown II
Print: ISBN 978-1-4331-0742-9 hardback SFR 120.00 / €* 107.00 / €** 110.00 / € 100.00 / £ 80.00 / US$ 129.95
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The Handbook for Student Law for Higher Education Administrators is a practical tool, intended for administrators dealing with students in higher education, focusing principally on four-year institutions. Addressing the ever-developing relationship between higher education and the law, the book will provide the academic administrator with the means to knowledgably and confidently navigate the many legal threats and challenges facing colleges today. Using examples from real cases and scenarios from different institutions, the handbook provides sample policies, checklists, and advice that administrators can apply to a wide variety of situations, both preventatively and proactively. Also included are relevant 2008-09 amendments to the Americans with Disabilities Act and the Federal Educational Rights and Privacy Act, and each chapter includes a section on the impact of the Higher Education Opportunities Act of 2008. The Handbook for Student Law for Higher Education Administrators is a compendium of practical knowledge and guidance, useful for any administrator dealing with the legal minefield that is higher education.

The Author: James Ottavio Castagnera, J.D., Ph.D., has spent more than twenty-five years practicing, writing about, and teaching law. He is an expert in employment law and policy, and is well versed in many areas of higher education law. He has been a labor lawyer and litigator with a major Philadelphia firm and the general counsel/corporate secretary for the then-largest convenience store chain in New Jersey and for the nation's number one econometric forecasting organization. He has published seventeen books, as well as some fifty professional/scholarly articles and book chapters. A frequent commentator in newspapers, magazines, and on the Internet, Castagnera's teaching has taken him to the University of Texas-Austin, the Wharton School of the University of Pennsylvania, and the Widener University School of Law. Currently he is legal counsel to a New Jersey university and president of a freelance writing firm. In 2007 he was an Academic Fellow on Terrorism in Israel under the auspices of the Foundation for Defense of Democracy. His seventeenth book, Al Qaeda Goes to College, was published in April 2009.

So Sue Me - Internship or slave labor?
Part 1 of 2 parts. summed it up for all of us very neatly last November. "This year has been extremely rough: New college graduates had 40 percent fewer job prospects, a new report shows. And the outlook for 2010, while better, is still not very promising." Little wonder then that current students and recent grads are often willing to latch onto any career opportunity offered, even if no paycheck is attached.

This goes for college kids willing to work in unpaid internships, international students prepared to accept any job that enables them to get a foot inside an American employer’s door, and graduate assistants content to pull the oars inside and outside the classroom for tenured faculty members.

The Obama administration is eyeballing what it sees as potential exploitation on all three fronts. The Labor Department’s (DOL) Wage & Hour Division is taking aim at unpaid internships, especially in the forprofit arena. Immigration and Customs Enforcement (ICE) is policing employment among international students. And the National Labor Relations Board is expected to reinstate the "employee" status of graduate assistants, a status they enjoyed during the Clinton presidency, then snatched away by the Bush administration labor board.

One upshot of all this attention to student workers by their Uncle Sam is a spate of legal actions by private litigants, who smell blood in the heightened regulatory environment.

Unpaid internships an endangered species?
According to an April 2nd story in the New York Times, the DOL’s Wage & Hour Division has decided to investigate alleged abuses that it claims are occurring with respect to student internships. "This heightened interest is due to high unemployment rates," speculates Toni McLawhorn, director of career services at Roanoke College. "Are unpaid interns replacing paid workers?" She added that she doubts it.

All the same, the Times quoted Acting Wage & Hour Director Nancy Leppink to the effect that, "If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid, and still be in compliance with the law."

Those circumstances that allow unpaid interns number precisely six, according to guidance issued to clients by the Philadelphia law firm of Morgan Lewis. They are listed in the adjoining box.

Explains the DOL, "Because the Fair Labor Standards Act’s definition of 'employee' is broad, the excluded category of 'trainee' is necessarily quite narrow. Moreover, the fact that an employer labels a worker as a trainee and the worker's activities as training . . . does not make the worker a trainee for purposes of the FLSA unless the six factors are met."

Is the problem as serious as this tough talk from DOL is making it sound? Or is McLawhorn right, when she explains, "Usually, interns are hired with a particular project in mind. It's a win-win." Diane Klein is assistant director for internships at Nova Southeastern University. About the internship opportunities coming through her door, she says "I am seeing a lot that are unpaid." When no paycheck accompanies the position, she adds, echoing McLawhorn, "We do a good job at making sure the student gets course credits. We also make sure that the experience adds value to the intern's resume."

Klein notes, "It's better this year than last. More organizations are coming back and recruiting for interns. Last year it was like pulling teeth." However, "Many organizations consider unpaid internships as making students 'pay their dues.' These employers consider the experience to be a precursor to a paid job… an opportunity to make sure they are hiring the right person."

What really worries Klein are the "mom and pop" outfits that are on the lookout for graduating seniors, who didn't do internships during college and are entering the work force with resumes reflecting little more than their bachelor's degrees. "I see the desperate looks on their faces. Some of these students are ready to do anything to get in the door. These situations make me nervous."

For Karen Evans, director of the Career Development Center at Albright College, "The bad thing that I have seen is that some companies, who formerly would have entertained the thought of hosting an unpaid internship, won't even attempt it anymore."

The caution of such gun-shy companies might not be misplaced. Steshenko v. McKay is a federal case decided by District Judge Richard Seeborg on April 1st in San Jose, California It may be a harbinger. The plaintiff sued after being terminated from the nursing program at Cabrillo College. Steshenko challenged his termination, contending that he was a whistleblower. Specifically, he claimed he'd been punished for his complaints about what he called "corrupt practices" in the Cabrillo nursing program. He alleged, among other abuses, the "exploitation" of nursing students, who he claimed were forced to work as unpaid interns at an affiliated hospital. (He also complained about poor patient care and other perceived wrongdoing.)

On the defendant college's motion to dismiss the case, His Honor held, "[Steshenko]' s claim that he was terminated for speaking out on such issues is sufficient to survive…." And, although the judge booted Steshenko's claim of involuntary servitude in violation of the Constitution's 13th (antislavery) amendment, he gave the plaintiff leave to sue for back-pay compensation for his unpaid internship under the California Labor Code and the federal Fair Labor Standards Act.

The DOL's regulations combined with lawsuits such as Steshenko may represent a knockout combination for unpaid internships. 
To be continued in Part 2 of 2 parts 

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1 comment:

  1. Mr. Castagnera, my case is not about internships. My case is about regular "academic" courses at Cabrillo Community College, where the nursing students were forced to perform an unpaid work as housekeepers and janitors to benefit the private hospitals, as a condition for their training.
    I am an Electronics Engineer with 3 degrees: Master's in Electrical Engineering, Bachelor's in Electrical Engineering and Bachelor's in Biochemistry and Molecular Biology. For many years, I was employed in the Electronics industry. Then I lost my employability when my job and the whole industry were outsourced abroad.
    I went to the college to be re-trained into a non-outsourceable profession of a Registered Nurse. There, I was told that I have to work for the private employers without pay, doing the "dirty work" that their nurses were not willing to do. When I raised the issue of legality of such work, as well as the egregious safety violations that I observed at the clinical sites, I was expelled from the nursing program, and told that I would never be allowed to return if I sue.
    So, my case is a little bit different from what you purport it to be. It does not touch the voluntary unpaid internships.