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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 stu

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-between-a-1099-and-a-w-2/2/ https://www.learnvest.com/knowledge-center/the-difference-be... My only surprise is how long it took this to happen.

gnicholas 10y ago
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-court-upholds-irs-regulation-saying-medical-residents-are-students-and-subject-to-fica-tax/ http://www.clhe.org/marketplaceofideas/uncategorized/supreme...

gnicholas 10y ago

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