On January 24, 2019, several current and former Brown University Dining Services student-workers hit the Ivy League school with a unique lawsuit alleging that Brown has been violating federal labor laws for years.
The Fair Labor Standards Act (FLSA), a federal labor law passed in 1938, and Brown’s own policy dictate that employers must compensate workers when they are “engaged to wait” during “on-call” shifts. Employees meet this criterion when their on-call restrictions are such that they are not able to use their time effectively for personal affairs. Brown student dining managers and supervisors say that they are expected to be on campus, follow dress code, and be able to immediately respond via phone and in person during their on-call shifts.
Max Kozlov, a junior majoring in cognitive neuroscience at Brown and former Brown University Dining Services supervisor and manager told Truthout, “Depending on the unit, supervisors and managers in the blue room, carts and cashier’s units take on-call shifts of 10-30 hours per week, in addition to working 15-40 hours per week, in addition to being full time students. But, in reality, we were really effectively on-call 24/7 because of the restrictions and demands of the job.” Another plaintiff, Ben Bosis, picked his class schedule, in part, based off on-call shifts.
The crux of the legal complaint against Brown, Kozlov said, is that the university’s on-call policy goes back “indefinitely” and “to our knowledge, no one has ever been compensated adequately [by Brown] for being on call.” If this lawsuit is successful, sixty former and current Brown student dining supervisors and managers may be eligible for retroactive payment.
Federal and state “on-call” lawsuits have been filed in the past, with mixed outcomes. In January 2018, Pier 1 Imports settled for $3.5 million following allegations that the company violated California wage laws by requiring employees to be on call for shifts without compensation. Pacific Sun, The Gao and Tilly’s have been sued for similar allegations. Some FLSA on-call lawsuits have failed, typically when employees could still pursue their own interests to some degree while on call.
The FLSA lawsuit against Brown, uniquely led by students, could trailblaze the path forward for similar actions against other universities across the country. The case could implicate non-student workers as well by swinging the pendulum of the debate one way or the other; the courts have far from settled issues regarding on-call compensation.
Currently, on-call payment terms vary widely among universities. Purdue University’s website, citing FLSA, specifies that any employee that “cannot use the time effectively for his/her own purposes is working while ‘on call’ and must be paid at least the federal minimum wage for those ‘on call’ hours.” Some schools, like the University of North Carolina, dictate that “one hour of compensatory time is awarded for eight hours on call.” Iowa State University’s student employee dining handbook proclaims on-call employees “will not get paid for these shifts unless they are called into work.” Harvard’s policy is less straightforward: “The administration of on-call work and the determination of the amount of on-call compensation will be managed locally.”
Some might argue that individuals shouldn’t be paid while on call since they aren’t necessarily laboring in a technical sense during that time. But, on-call shifts can dramatically alter how one spends their time — Brown University Dining Services on-call hours could begin as early as 7 am and end as late as 2:15 am, which affects students’ sleep schedules, study schedules and social lives.
Brown students’ lawsuit could eventually force universities to standardize — and actually enforce — their on-call compensation policies across the board. Considering the average student is $37,172 in debt by the time they graduate, this could be welcome news for thousands of student workers.
“The Happiest Place to Work on Earth”
Brown University Dining Services, Brown’s largest employer, hires both non-student and student workers; the former are unionized, the latter are not.
“Non-student workers are not required to take on-call shifts,” according to Karen McAninch, a business agent of United Service-Allied Workers of Rhode Island who works with Brown Dining Services non-student employees.
Brown University Dining Services advertises itself as the “Happiest Place to Work on Earth” in posters around campus, attempting to lure the less well-off, indebted students into applying for a job.
Kozlov, a first-generation college student, became a cashier’s supervisor for $11.60 per hour as a freshman in 2016 and, after about a year, earned an additional $2.75 hourly when he became the cashiers unit manager.
During the Fall of 2017, student managers at Brown University Dining Services, sent the administration a “Proposal to Compensate Supervisors for On-Call Hours,” which suggested a bonus structure of a mere 8 cents to 56 cents per hour as payment for on-call time. The Brown University Dining Services administration told the managers that they “thought they were in compliance with the law,” according to Kozlov.
By his junior year, Kozlov was logging 30-40 hours per week and realized he needed to spend more time on his academics. “I feel like we were simply necessary bodies that could be paid cheaply, without concern of how these hours were impacting us,” he told Truthout. He resigned on September 22, 2018, and subsequently sent the resignation letter to his fellow supervisors and managers. In the letter, he told Ann Hoffman, the former director of administration at Brown University Dining Services, that he “knew it was time to leave when he could no longer look fellow students in the eye and tell them how great it is to be a supervisor.”
His resignation, “as well as ongoing efforts by other student managers to address these concerns, invigorated conversation regarding students’ hours and working conditions at [Brown University Dining Services],” Kozlov said. Shortly after he resigned, 27 former and current dining managers and supervisors filed this formal complaint addressed to Peter Rossi, the director of Brown Dining Services, regarding on-call payment:
We would like to discuss retroactive compensation and are open to hearing your thoughts on this issue. Furthermore, we would like to ensure that your policies are updated to be in compliance with these labor laws. Absent any response by Friday, October 19, we are prepared to pursue the next appropriate options.
On October 18, Rossi called a meeting with Amanda Bailey, Brown’s vice president for Human Resources (HR), Sheila Coleman, an HR consultant, and some of the Brown student supervisors and managers. The students also invited David Egilman, a professor in the Department of Family Medicine at Brown, in order to advise and support them. Throughout the meeting it was clear the administration hadn’t thought through the issues deeply; when the students asked who their employer was technically, the administration couldn’t comment. Egilman told Truthout that he was actually surprised by their lack of knowledge: “I thought they would at least come up with some kind of story, rather than mimic Sergeant Schultz from Hogan’s Heroes’ ‘I know nothing,’” he said.
When it became evident that the issues wouldn’t be fully resolved through cooperation, some of the students decided to retain counsel.
This past November, however — subsequent to further discussions with the Brown University Dining Services student management team — the administration increased supervisor wages and abolished on-call shifts. Bosis, who took the job to supplement his financial aid package, told Truthout that “Were the current policies in place when I was working, I don’t think I would have quit in the first place.” He added, “I have a lot of respect and appreciation for the administrators at Brown who have supported us in ways that they can and helped increase pressure on the [dining services] admins to change their policies.”
Still, none of the former student-managers have received retroactive payment for their hours.
Kozlov and Bosis aren’t the only Brown University Dining Services complainants. Katherine Jimenez, a carts supervisor set to graduate in 2020, told the Brown Daily Herald that the push for policy changes, such as wage proposals, reduced on-call hours and meals during shifts, isn’t new. Women and people of color have “spearheaded these movements,” she said.
Brown University Dining Services’ non-student employees, many of whom are Black and Brown people from Rhode Island’s Cape Verdean community, recently told The Nation that they dread the “summers of hell.” Workers have difficulty staying hydrated in the hot, miserable working conditions in the old refectory building, and sometimes it’s even a struggle to remove their pants in the bathroom because of sweat. One employee was hospitalized for several days following a heat-related seizure on July 1, 2018. Following a yearlong campaign led by workers and Brown’s Student Labor Alliance, a group that “acts in solidarity with workers,” the University announced a $3 million investment to install air conditioning in the refectory.
A History of Labor Exploitation
Ivy League universities — typically managed by wealthy elites — may project a progressive image, yet oftentimes fail to surpass the status quo when it comes to labor issues.
For Brown, this has been true throughout its history. For example, an investigation commissioned by Brown University itself reported that Brown’s oldest building — University Hall — was financed through a public subscription campaign, whereby white men “donated” enslaved people to construct the building. Wood materials were donated by Lopez and Rivera, a large firm that traded enslaved individuals, previously based in Newport, Rhode Island.
The four Brown brothers, after whom the university was named, participated in the trade. During one particularly horrific capture funded by the Browns in the 1760s, 108 of 196 enslaved Africans — including children — perished on the ship The Sally during sail from Africa to the West Indies. One woman hanged herself between the decks. Others drowned themselves following a failed insurrectionary escape attempt.
Although the 13th Amendment halted slavery and involuntary servitude for those not convicted of a crime, some universities maintain labor contracts with prisons that generally pay prisoners pennies an hour. In 2015, Columbia University was the first university to divest from private prison companies following a student campaign titled Columbia Prison Divest. Although Brown students have similarly protested, there’s no evidence that Brown University — or any other Ivy League school — has followed suit.
Within the past few decades, most labor disputes at Brown have revolved around wage labor and unions. The Brown University administration singlehandedly altered the labor landscape on campuses across the entire country in 2004, when it argued to a Bush-appointed National Labor Relations Board (NLRB), a quasi-judicial body which rules on labor-related cases, that graduate students, research assistants, and proctors have a primarily educational, not an economic, relationship to the university and, thus, shouldn’t be allowed to unionize or collectively bargain as employees. The Board ultimately agreed with Brown, and reversed a previous ruling, NYU (2000), that granted graduate teaching assistants the right to unionize.
However, two years ago, the Graduate Workers of Columbia filed a petition seeking to represent a unit of graduate and undergraduate teaching and research assistants, and the Board finally overturned the decision made under Brown. This decision was made despite a brief filed by Brown University, Cornell University, Dartmouth College, Harvard University, Massachusetts Institute of Technology, University of Pennsylvania, Princeton University, Stanford University and Yale University which urged against the recognition of graduate students as employees.
This relatively new development is, in part, why we’ve seen an explosion of student union activity.
On November 1, 2018, Brown graduate students voted 576 to 394 in favor of unionizing; however, since the students were well-aware that filing through the NLRB could trigger another rule reversal, they filed the union through a private entity, AAA. Universities must approve of the union when students file privately, which provides schools with much more leverage over union negotiations and they can cancel the labor agreement at any time.
Brown graduate student fears were well-founded: earlier this month, on December 7, 2018, Grinnell College administrators instigated another round of NLRB ping pong when it filed an appeal of the Columbia decision in response to the Union of Grinnell Student Dining Workers (UGSDW) NLRB petition to expand its union. UGSDW was forced to withdraw their petition in early December 2018, citing the “flimsy possibility of a fair ruling” before a Trump NLRB. Because of private university administrators’ unwillingness to support student unions, the future of publicly administered unionization on campus looks bleak until a new labor board is appointed.
Labor Disputes on Campus Are Radicalizing Youth
Even if the lawsuit against Brown isn’t successful in a legal sense, the student-led initiative may inspire other students and workers to develop tactics that challenge their poor working conditions. “Students have a lot of sway at universities, and this is a power that students can and should use to their advantage to stand up to injustice,” Kozlov said. In some cases, it might make the most sense to sue a university that is blatantly breaking the law, as Brown student managers have done. In other cases, demonstrations and direct action would be more impactful, as with the Student Labor Alliance’s fight against hot working conditions at the refectory.
Labor disputes at universities, especially if they are organized in solidarity with non-student workers, can be a vital entry point into radical organizing against powerful institutions.
A display of solidarity this past May between academic student workers, non-student cafeteria staff, student advisers and their supporters at The New School, based in New York City, shut the cafeteria down for 10 days in response to the university’s attempt to have cafeteria staff re-apply for their jobs under cryptic terms. Many suspected that the university was attempting to bust the cafeteria staff union, in order to replace unionized workers with cheaper student-workers.
Collaboration among a wide variety of anarchist, communist and pro-union groups proved to be efficacious: “Militancy, magnitude, and legitimacy were exchanged, bolstering otherwise timid, small, or dismissable individual campaigns,” Pacific Standard Mag reported. In the end, UNITE HERE Local 100 declared a victory for the cafeteria staff, with all staff members retaining their jobs under their original contract.
When universities try to prevent students from unionizing, they are not only being avaricious (Brown’s endowment is $3.8 billion), they are also robbing students of empowering experiences. Meanwhile, despite publishing a report in order to make reparations for its historical relationship to slavery, Brown has seemingly resisted student activists’ calls for the school to divest from private prisons, raising questions about whether the university actually wishes to abolish the current racist social order. As one of the world’s most powerful, elite institutions, which oftentimes fails to pay its student-workers an adequate wage or compensate them for on-call hours, Brown is implicitly teaching students that this is how workers ought to be treated. And anyone who’s ever forgotten the details of a course from college knows that some of life’s most powerful lessons are taught outside of a classroom.