Work for hire? A guide to the legal issues involved when student journalists become ‘employees’
Each day throughout the country, thousands of college students show up for work at the newsroom or the broadcast station. Some of these students are working for academic credit, others for pay and others simply for the experience. In many ways these students resemble employees. They work, often 40-plus hours per week, to create a product that benefits their school and community and may enhance their long-term career prospects. Yet these individuals are also students who balance their commitment to student media with classes, papers, exams and other activities.
Are these students employees, independent contractors, or something else entirely? The answer can have wide-reaching implications for student journalists and their schools. This article will highlight some of the legal issues raised by how students are classified for employment purposes. Specifically, this article aims to illustrate how it can be disadvantageous to try to squeeze students into categories where they do not neatly fit.
Employees or contractors?
It is not easy to figure out how to classify student journalists. As will be explained more fully below, treating student journalists as employees is inconsistent with their treatment under the First Amendment and can also result in schools having to address a barrage of other issues, from workers’ compensation to tort liability. Yet labeling student journalists as independent contractors or freelancers may risk depriving them of much-needed resources and may not make sense in the context of management-level editors. As a consequence, students do not always fit comfortably within the definitions of either an employee or an independent contractor.
The Supreme Court has recognized that there is no clear-cut definition that solves every problem associated with employment law and has stressed that whether an individual should be classified as an employee depends on all of the circumstances.1 Despite this, “control” has emerged as an important factor in determining an employer-employee relationship. Specifically, an individual typically is labeled an “employee” if the employer can control what work will be done and how it will be done.2 In contrast, an individual is an independent contractor if the person for whom he or she is working can control only the result of the work rather than the means and methods of accomplishing that result.3
This guidance seems to indicate that student journalists should not be classified as employees. The courts have forbidden public colleges and universities from controlling the editorial operations of their student media.4 Additionally, students in similar situations as student journalists have not been designated school employees. For example, most courts have refused to classify student athletes playing on scholarship as employees of the school even when giving those students employee status would have benefited them.5 Similarly, graduate assistants often perform work that is relevant to their careers and that provides benefits to their schools; however, these individuals are routinely not classified as school employees.6
Another factor that often helps determine employment status is the way in which individuals are paid. For example, paying workers by the hour may indicate that they are employees, while paying workers on a per-project basis may indicate that they should be classified as independent contractors.7 While the method of payment is not the only factor that determines an individual’s employment classification, it is important for schools to pay attention to how they are paying students workers. For example, many papers pay student journalists on a per-project basis but refer to the projects as “hours worked.” Unless students are genuinely being paid by the hours worked and not by the project, this practice could make the process of deciding how to classify student journalists more confusing.
Classifying student journalists as pure independent contractors can have drawbacks as well. For example, typically independent contractors are expected to use their own supplies and tools to complete their work. In contrast, students often do not have the equipment necessary to run a publication or broadcast, and therefore depend on the use of school equipment. Additionally, independent contractors typically are not assigned office space that is exclusively theirs to use. Although these factors are not determinative, particularly if other factors point toward independent contractor status, classifying certain students as independent contractors could be particularly disadvantageous. Specifically, senior editors are typically expected to keep regular office hours, much as employees are expected to keep regular work hours and report in at designated times. Furthermore, senior editors frequently have specific duties, such as exercising supervisory authority over other students, that differentiate them from ordinary freelancers. Thus, the employment status of senior editors may need to be classified differently from that of junior staffers.
For the reasons discussed, it does not seem right for student journalists to be given blanket classifications as either employees or independent contractors. The following sections examine how different classifications of student journalists can have effects on specific areas of the law.
The First Amendment
Classifying student journalists as school employees is inconsistent with First Amendment principles. The Supreme Court has held that the First Amendment does not protect public employees for statements they make pursuant to their official duties.8 If “employee” status were strictly applied, then a student journalist “employee” would have no First Amendment right to criticize the college in an editorial column. This result clearly is unsustainable under the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District, which held that students have comprehensive free speech protection under the First Amendment and administrators may punish or prohibit student speech only in very limited circumstances.9 The Court emphatically stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”10 In contrast, public employees do shed many of their rights to free expression when they go to work. By steering clear of classifying student journalists as “employees,” schools can avoid creating this internal contradiction that invites temptation to censor unlawfully.
Another related issue raised by classifying student journalists as employees is whether and how they can be fired. The default employer-employee relationship in the United States is at-will employment, meaning that an employee can be fired for any reason or even for no reason at all. In contrast, the First Amendment provides that schools cannot fire their student journalists based on a viewpoint taken in the student media.11 For this reason, the typical at-will employment situation simply cannot function in the context of student media.
Treating student journalists as school employees raises inconsistencies with the protections established for them by the courts and the First Amendment. By classifying student journalists as public employees schools risk uncertainty as to whether and to what extent these students’ First Amendment rights are protected. If student journalists are unsure of their rights they may refrain from publishing articles they believe the school would find offensive. It is therefore possible that classifying student journalists as employees would have the effect of chilling speech.
Who is liable?
Aside from the First Amendment implications, classifying student journalists as employees could open up a new range of liability for the schools that employ them. Because “employees” create work at the direction of their employers, employers may be held liable for the wrongful acts (referred to in the legal system as “torts”) of their employees.
As a general rule, tort liability is directly connected to whether one party has a right to control the conduct of the other. This means that public schools and student media advisers will not be held liable for the content of their student press as long as they do not censor articles or exercise any form of content control.12 This remains the rule even if the university provides financial assistance to the paper: courts have held that actions such as furnishing money, office space, supplies and even school credit for newsroom activities are merely a form of financial aid and not an indicator of an employer-employee relationship such that the school has the right to control the paper’s content.13
Labeling student journalists as “employees” threatens to blur this clear no-liability line, because employers typically do have the right to regulate the content of their employees’ work. Courts tend to favor a case-by-case approach for determining whether a student newspaper’s act can properly be attributed to a school for purposes of determining liability.14 It is therefore possible that classifying student journalists as “employees” could make it more likely for courts to hold schools liable for student expression, particularly if the classification gives the impression that the schools are somehow controlling the students’ work.
Who owns the copyright?
Intellectual property ownership—figuring out who owns a particular article, video or photograph—is another issue that may depend on how students are classified. In general, the creator of a work owns the copyright to that work.15 Even if the work is part of a larger collection (like a newspaper or yearbook), the copyright owner in the collective work usually has the rights to use the student’s contribution only as part of the collective work and not for any other purpose.16
In the employment context however, a special exception applies. Under the “work made for hire” doctrine, employers own and control the copyright on works their employees create while on the job. Thus, classifying student journalists as employees can give the impression that any work they create becomes the property of the university.17
In contrast, independent contractors or freelancers typically own the copyright in the works they create and can control future uses of the work, such as granting permission to have the work reprinted. In the education context, this would mean that a student newspaper or yearbook looking to reprint student work years later might have to spend time tracking down student authors and photographers for permission. For this reason many schools believe it is advantageous for the school to own the copyright in the work.
Giving the school the copyright does not mean that a student should be classified as an employee, however. Instead, given that students are often looking to use their student media work to help them find permanent jobs, schools should enter into written agreements with their student journalists to create rules that can allow both the school and the student to use the work within reasonable limits. For example, a school or publication may retain the copyright in a student journalist’s work but give the student limited reproduction rights, such as the right to use the work in portfolios or for other career advancement purposes. Alternatively, an agreement could allow the school the right of first refusal for any student-created works. These examples are not meant to be all-encompassing. Instead, there are plenty of possibilities for students and their schools to create an agreement that benefits all parties.18 The important point is to have an agreement in place before the student begins work.
Using school equipment
Although classifying students as employees could have dangerous implications for their First Amendment rights and for the school’s liability for their actions, labeling student journalists as independent contractors may be problematic as well. As previously mentioned, independent contractors typically provide their own equipment and use their own work space. In contrast, many student journalists depend on school-provided equipment and office space. Classifying student journalists as independent contractors may therefore risk depriving them of needed resources.
Of course, students do not necessarily forfeit their independent contractor status by relying on the use of school equipment and office space. This is particularly true if other factors, such as the school’s lack of control over the student’s work, point toward labeling the student as an independent contractor.
Some schools, such as Virginia Tech, have avoided any risk that students will be deprived of school resources by setting up an independent entity under which student journalists are employed, and having the entity contract with the university for office space and equipment. Others, such as Penn State, have avoided the appearance of direct university payment to student journalists by buying subscriptions to the newspaper for the benefit of the campus community, in exchange for the media organization’s payment of rent for university office space. In that way, the relationship is structured more like a vendor relationship and less like an employment relationship.
Alternatively, the school may treat the provision of office space and equipment as a form of financial aid that the school provides to students enrolled in its journalism program. Just as courts have characterized these amenities as financial aid in the tort liability context, schools may be able to claim they are a form of financial aid in order to avoid classifying their students as school employees.
A related issue is whether schools should provide legal counsel to student journalists.19 If the university regularly provides legal counsel or assistance to its employees, and if student journalists are classified as employees by the school, the college or university may have to provide legal counsel. In practice, although some student media organizations do provide students with legal counsel, it is unusual for a school to provide a student journalist with counsel. Nevertheless, the possibility that the school may have to do so if it classifies its student journalists as employees is one that should not be taken lightly.
Classifying student journalists as either employees or independent contractors can have implications beyond those specific to student media. It is therefore important to have some idea of the consequences that can result from labeling students one way or the other. A full discussion of these issues is outside the scope of this article, but they are mentioned here to provide an idea of other considerations that must be addressed when determining the classification of student journalists.
The decision to compensate students for their work on student media can provide them with much-needed financial help and allow them to contribute more fully than they might be able to do as volunteers. Nevertheless, schools often wonder whether their student workers must be paid the minimum wage. In the student journalist situation, the answer is clear: the Department of Labor’s Wage and Hour Division, which administers the Fair Labor Standards Act (the federal minimum wage act), has held in multiple advisory opinions that student journalists are not “employees” for purposes of the Act.20 As long as student media programs are closely affiliated with an educational institution and provide educational experience to students, student journalists are exempt from the federal minimum wage requirement. This includes students working for independent student media organizations, as long as the publication can demonstrate that it provides training and educational experience for its student staff. Therefore, because the Labor Department has acknowledged that student journalists should not be classified as employees, student media organizations that compensate their students need not be concerned with federal minimum wage requirements.
The tax treatment of student journalists depends directly on whether they are classified as employees or independent contractors. Generally, employers must withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to an employee, while individuals who hire independent contractors generally do not have to withhold or pay any taxes (although the contractors of course must pay tax on their earnings).21 Although paid students must be classified one way or the other for tax purposes, classification depends on the totality of the circumstances. As long as schools document each of the factors used in coming up with the determination, they need not be concerned that using the term “employee” or “independent contractor” for tax purposes necessarily is binding for all purposes.
An individual’s entitlement to workers’ compensation benefits tends to turn on his or her employment classification. Although employers may elect to provide workers’ compensation coverage for individuals who are not classified as their employees, they are not required to do so.22 Thus, independent contractors typically must look either to their own insurance or to the entity that employs them for coverage, while a salaried employee has the right to resort to the employer’s coverage. Thus, the employee/contractor decision may impact whether a college must carry students on its workers’ compensation policy and must cover them for any work-related injuries.
Although salaried employment generally triggers eligibility for workers’ compensation coverage, even an unsalaried worker might be eligible in the school context. At least two state appellate courts have found unpaid student interns to be covered under workers’ compensation insurance provided by their universities.23 Notably, however, the universities in both disputes had purchased workers’ compensation insurance that explicitly covered the students.
As this article has demonstrated, in many contexts, it is often disadvantageous to classify student journalists as employees. At the same time, a pure independent contractor relationship is not always a neat fit with what student journalists are doing, particularly those who have control over the use of college facilities and property. Schools may be best-advised to resolve the classification dilemma by creating a hybrid relationship. One example of such a relationship is where the student is treated for many purposes as an independent contractor, but receives some added benefits—such as use of school equipment—by virtue of student status, analogous to a form of financial aid.
The importance of memorializing this relationship in a written agreement cannot be stressed enough. An agreement may take the form of an actual employment contract, or may also take the form of a handbook of rules that all workers attest to having read and received before they begin employment. And the level of sophistication can vary with the intensity of the relationship – more detail may be desirable in hiring an editor-in-chief, and less in hiring a one-time photo stringer. Written agreements can provide a clearer picture of the desired relationship, and should things turn sour down the line, courts will look to these agreements to enhance their understanding of how the case ought to turn out. Although hammering out an agreement may sound tedious, it is the best way to ensure that the rights of both schools and students are well-established and protected.
Laura Napoli is the Student Press Law Center’s Legal Fellow.
She is a graduate of the University of Chicago Law School.
1 Fair Labor Standards Act Advisor, Independent Contractors, UNITED STATES DEPARTMENT OF LABOR, http://www.dol.gov/elaws/esa/flsa/scope/ee14.asp. The Court most recently considered how to classify students for tax purposes in Mayo Foundation v. United States, No. 09-837 (U.S. filed Sept. 2010). The Court heard oral arguments on November 8, 2010, and a decision is forthcoming.
2 Independent Contractor (Self-Employed) or Employee?, IRS.GOV (Aug. 3, 2010), http://www.irs.gov/businesses/small/article/0,,id=99921,00.html.
4 LAW OF THE STUDENT PRESS 283 (Student Press Law Center 2008).
5 Specifically, a student-athlete attending school on an athletic scholarship is not an employee for the purpose of obtaining workers’ compensation benefits. See Adam A. Milani, Can I Play?: The Dilemma of the Disabled Athlete in Interscholastic Sports, 49 ALA. L. REV. 817, 841 n.69 (1998) (citing cases).
6 Martin H. Malin, Implementing the Illinois Educational Labor Relations Act, 61 CHI.-KENT L. REV. 101, 111-12 (1985).
7 See, e.g., Marco v. Accent Publ’g Co., Inc., 969 F.2d 1547 (3d Cir. 1992) (finding that freelance photographer was an independent contractor where evidence showed that, among other things, he was paid by the job).
8 Garcetti v. Ceballos, 547 U.S. 410 (2006).
9 393 U.S. 503 (1969).
10 Id. at 506.
11 See, e.g., Thonen v. Jenkins, 491 F.2d 722 (4th Cir. 1973) (per curiam) (ordering that student editor be reinstated after editor was expelled for publishing a controversial letter-to-the-editor); Schiff v. Williams, 519 F.2d 257 (5th Cir. 1975) (holding that president could not censor or fire student editors after they published embarrassing stories about the school).
12 See, e.g., Milliner v. Turner, 436 So.2d 1300 (La. Ct. App. 1983) (holding that university could not be held liable for content in student newspaper because it did not have the authority to control the newspaper’s content); Mazart v. State, 441 N.Y.S.2d 600 (N.Y. Ct. Cl. 1981) (holding that university could not be liable for letter published in student newspaper because it could not control the content of the newspaper and therefore could not establish an agency relationship).
13 LAW OF THE STUDENT PRESS at 283.
14 See, e.g., Lewis v. St. Cloud State Univ., 693 N.W.2d 466, 472 (Minn. Ct. App. 2005) (discussing how the Eighth Circuit prefers a case-by-case approach).
15 SPLC Blog, “Back to School Checklist: Who owns what?” Sept. 10, 2010, http://www.splc.org/wordpress/?p=1134.
16 Collective work owners can also use the work as part of a revision of the collective work, or as part of any later collective work in the same series. See 17 U.S.C. § 201©.
17 In the copyright context, the Supreme Court has identified several factors to determine whether to classify someone as an employee or an independent contractor. These factors include the amount of skill required to perform the work, the source of supplies, the location of the work, the duration of the relationship, the hiring party’s ability to assign additional projects, the creator’s discretion, and the tax treatment of the creator. For a full discussion of these factors, see Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
18 The Student Press Law Center has created a model contract to divvy up the rights in student-created articles, artwork, photos and other copyright-protected property. A copy of the agreement is available at http://www.splc.org/pdf/copyrightagreement.pdf.
19 This issue recently arose in Ohio after a college photographer at Ohio State was detained and handcuffed by campus police after photographing cows that had escaped on his college campus. Ohio State has told the student that it will not provide him with legal counsel or money for an attorney. For full details on the story, see Michelle Sullivan, Photographer: ‘I’m on my own,’ THE LANTERN (May 3, 2010), http://www.thelantern.com/campus/photographer-i-m-on-my-own-1.1471087.
20 For a discussion of these opinion letters, see David C. Yamada, The Employment Law Rights of Student Interns, 35 CONN. L. REV. 215, 227-30 (2002); see also U.S. Dept. of Labor, Wage and Hour Division Field Operations Handbook, 10b24, 10b03(e) (Oct. 1993).
21 Independent Contractor (Self-Employed) or Employee?, IRS.GOV (Aug. 3, 2010), http://www.irs.gov/businesses/small/article/0,,id=99921,00.html.
22 Id. at 252.
23 Id. at 252-53. As described in the article, in one case, the New York State Appellate Division determined that training was “the equivalent of wages,” and therefore, the student could receive workers’ compensation. In the other, the Colorado Court of Appeals held that a student who was injured during an internship in a university-sponsored internship program was an employee for purposes of receiving workers’ comp.
reports, Winter 2010-11