Uncertainty prevails as college newsrooms navigate health care law

Student journalists typically don’t punch a time clock. They report, write, edit, design, proof, publish and promote their work on weekends, nights that stretch into mornings and in between classes.

Now, many are being asked to account for their hours. The changes are coming as employers begin implementing the Affordable Care Act and have the potential to upend the way newsrooms operate and how student journalists approach running out the door to cover end-of-the-week breaking news.

The new law says employers with more than 50 full-time workers or equivalents must offer health insurance for their full-time employees (averaging 30 hours per week) or pay a fine starting in 2016.

Already, some human resources and student employment offices at universities are enforcing policies that limit how many hours students employees can work per week, ensuring they don’t pass the 30-hour threshold that would make them full-time employees.

What this means for student journalists is yet to play out, but some worry that students will be asked to track — and ultimately limit — their hours. Student media advisers and general managers hope it won’t come to that.

“It’s hard to tell students to stop reporting on what they’re reporting, to stop editing a story if there’s news happening,’ said Rachele Kanigel, president of the College Media Association, a group that is watching the implementation of the new law closely. “Students want to cover it, and they’re not looking at the clock.”

‘Uncharted Territory’

How student journalists fall under university policies and the health care law is unclear.

“There’s just a lot of gray out there,” said Laura Widmer, general manager of The Iowa State Daily. “And I don’t know that there’s anything definitive that we can embrace as gospel.”

Rachel Arnedt, an attorney with Wiggin and Dana LLP who specializes in health and benefit plans, agreed: There aren’t clear answers at this point because the law is so new.

“I really think this just is going to shake out over the next couple of years,” Arnedt said. “The IRS does say that it’s continuing to think about these situations and will continue to come out with new guidance as it thinks is necessary.”

Student journalists are part of a niche category of employees: workers often paid by stipend who don’t track their sporadic hours and whose jobs aligns closely with their education. Some won’t reach that 30-hour threshold, but upper-level editors and top reporters may far surpass it. The journalists who hold multiple jobs on campus may very easily cross that line as well.

Department of Labor standards say that if an activity is related to a student’s educational program, those hours aren’t treated as employment hours, said Steven Bloom, director of federal relations for the American Council on Education. The Fair Labor Standards Act is what allows publications not to pay student journalists the federal minimum wage.

The Internal Revenue Service issued final regulations in February regarding the employer responsibility provisions of ACA. Though they were asked to consider creating a special category for student employees, they didn’t, leaving the final ACA regulations without a general exception for student employees.

“All hours of service for which a student employee of an educational organization (or of an outside employer) is paid or entitled to payment in a capacity other than through the federal work study program” are required to be counted toward employers’ requirement for shared responsibility of health coverage, according to the regulations.

The regulations did create an exemption for work-study programs. For students working under a federal or state work-study program, those hours for which they are compensated wouldn’t count toward the 30-hour threshold, Bloom said.

Paid student journalists aren’t generally classified as part of a work-study program, Arnedt said, but they also aren’t categorized as volunteers, unpaid interns or seasonal workers.

“So I think what it comes down to is you’re entitled to be credited with hours of service,” she said. “How are you counting those?”

Bloom agreed, saying that for non-work study students, “the way that the regulations were set up, (it) seems to me that the employer — whether it’s a university or college or the student newspaper if it’s a separate entity — they’re going to have to determine whether their journalists are working anywhere toward the 30 hours.”

Tracking those hours may become difficult. And whether universities offer students health care options, limit their work hours or come up with another solution will vary depending on the institution.

“In large measure, this is really uncharted territory,” Arnedt said.

Widmer said that she’s talked with a lot of lawyers specializing in student media and health care insurance and that she doesn’t get the same story as to what she should be doing to comply with ACA. There’s no clear answer that she has any comfort level with, but the Daily’s come up with its own solution and is being cautious.

The newspaper is a nonprofit that’s independent from the university, and its paid employees don’t reach that 50 full-time worker threshold — but they’re close. There’s a risk of being pushed past the threshold, which would mean possibly imposing hour caps on students. Widmer said this would take away from the educational value

“It’s hard to say, ‘OK, you can only work 29 hours a week and oh my gosh if there’s a breaking story and you’re on hour 29, walk away,’” Widmer said. “It’s impossible for our business of being breaking news and deadlines and special sections and everything else to truly say that one week looks like the next.”

Widmer said she as advised to have students who work more than 29 hours sign a waiver saying they are under their parents’ health insurance or otherwise don’t need it.

“We are doing that to protect ourselves,” she said. “Whether that has any legality or not, I have no idea. It was suggested by a lawyer so I’m hoping that it does.”

Universities easily pass that 50 full-time employee threshold. Clemson University began limiting students to 28 hours of work per week last fall, said Jackie Alexander, the associate director of student media at Clemson.

Students receive a flat stipend, but because of the HR system, the student media office, which is part of the university, has to enter a certain amount of hours that students are working. In the past, they’ve always stuck with a flat eight-hour rate, though students are easily working more than that, Alexander said.

Now, if students’ other jobs on campus begin edging them toward the 28-hour limit, Alexander said they have to adjust that number down to four or six. The student works less on paper, but not in reality.

“It’s business as usual for students,” she said. “It’s a little bit different for us on the back end, but nothing drastic compared to what I’m seeing from other advisers at other universities.”

Students working at media outlets at East Carolina University are paid in various ways — by the hour, by stipend, as freelancers. John Harvey, director of student media and adviser to The East Carolinian, said most students don’t work more than 15 hours per week in the newsroom, but those who have other jobs on campus create a dilemma.

Though the university hasn’t established an hour cap for student employees, Harvey said he believes that could actually solve the problem.

“I think you can argue that it’s a good idea that students not work outside a classroom more than 30 hours, because it’s hard being a student,” Harvey said, adding that those who need to work more for financial reasons could always pick up extra hours off campus.

But that doesn’t mean that hour caps would be without their problems. Harvey said the concern remains of students who have a “burning issue” they want to write about, but can’t get their message to the public through the newspaper if they’ve already worked 30 hours.

Exceptions for student journalists

At Indiana State University, the school limits students to 20 hours per week and has done so for years. Students are able to request to work more hours, up to 28. They used to be able to work as many as 37 ½ hours in a week with that request form, but the Affordable Care Act accelerated a decision to lower that number to make sure students focused on their education, said Tradara McLaurine, the assistant director of the university’s career center.

Every year during the budget cycle, there are conversations about whether students should be paid hourly and how to align them with the rest of the university. The compromise they’ve reached in the past has been to make student journalists stipend-based employees. As ACA comes into play, the conversation has shifted more toward making sure they are paid fairly as they track their hours, said Rachel Wedding McClelland, director of student publications at Indiana State.

“And many times I think administrators … go away saying, ‘that’s a really different scenario, so we’re going to make exceptions for them.’” McClelland said. “And that’s how we’ve kind of worked around it for a number of years, but this Affordable Care issue kind of pushes for the compliance to be in place, so I think everybody wants to try to comply with Affordable Care, so we’re re-examining.”

McClelland said she tells students all the time she wishes she could pay them what they’re worth, but like many student news operations, she simply can’t afford it.

Kent State University students are limited to a total of 28 hours for all campus jobs. Ami Hollis, associate director of the university’s Career Services Center, said they had been considering for a while changing the requirement from the previous limit of 32 hours per campus job. The Affordable Care Act seemed like a good time to make that transition and reduce the number of hours students work to make sure their focus stays on academics.

In benchmarking against other universities, Kent State found that it was the most liberal in allowing students to be paid non-hourly, Hollis said.

They took that as an opportunity to go through the process of requiring approval for non-hourly positions. Now, if a department wants to pay students non-hourly, it must substantiate the need to do so. This cut down on the number of non-hourly positions that exist.

Those that remained non-hourly employees, such as resident assistants and student journalists, are now told to track their hours anyway, and supervisors are to keep a record of how many hours students worked.

“That way if we get into a situation where we are audited … we can go back to the department and ask for the time cards or whatever their time-keeping method is,” Hollis said

But Hollis said they haven’t decided if they will monitor whatever tracking system the supervisors create and maintain.

Lori Cantor, Kent State’s student media manager, notes that tracking student journalists’ hours is difficult given the nature of their job. Students don’t work in shifts and may work off site or in between classes.

“If student journalists go out to lunch together and they’re discussing a story, do you put that on a time clock?” Cantor said. “You’re consulting a professor in the hallway about a lede you want to write, do you put that on a time clock?”for?

Arnedt said if she were a student journalist, she’d track her own hours and come up with a consistent, reasonable framework for monitoring how many hours she worked. If those consistently add up to more than 30 hours per week, she recommends stating the case to the university.

“I think that if it shakes out that most people are working at least 30 hours a week, then I think there’s an argument,” that the university should be obligated to provide a health insurance option, Arnedt said.

But universities have some leeway in how they count hours. For example, to determine who is full-time in 2016, they would look at the 12 months of 2015 and average the hours worked — including how much or little students work over the summer. Students might not even reach that threshold of 30 hours per week, Arnedt said, but “they can’t just ignore you because they know you’re only going to be there for a few months.”

Arnedt called it “premature” to come up with any sort of strategy at this point beyond self-tracking hours.

Bloom also said universities or student media offices will likely have to come up with a way to measure whether the journalists are working past the threshold.

He noted that many students already have health insurance, either through family plans or other options, and the act merely requires an employer offer insurance to full-time employees. Covered student journalists may decide to opt out even if it’s an option.

“What’s the likelihood that they’re going to decide to give that up and take the employer plan, I don’t know, but I think that’s sort of a question out there,” Bloom said.

Student journalists don’t get in the business looking for health care, Harvey said. “I don’t think it really occurs to anybody.”

Kanigel said if students were paid for every hour they’re working and if they were considered employees of the university, she believes they would likely fall under ACA requirements.

“But that’s not really the appropriate way of compensating the students,” or categorizing them, she said.

Categorizing student journalists as employees of their university raises a number of red flags. The question remains: Are student newsrooms independent news organizations or entities of the university? When they operate in rent-free university spaces, that line may be unclear, leaving their pay system unclear as well.

“And when that line is blurry, then I think questions like this become blurry as well,” McClelland said.

From an editorial standpoint, it’s much safer for student journalists to be considered employees of the student publication unit, McClelland said. Doing so would help maintain editorial distance.

As university employees, student journalists run the risk of facing questions about their ability to be unbiased if their wages are “at risk when they write a story the administration doesn’t like,” McClelland said.

Kanigel argues that it would be better to classify student journalists as independent contractors or freelancers.

“Publishing a student newspaper isn’t a core business function of a school — it’s a student activity,” Kanigel said. “It’s done primarily for the benefit of the students, not for the university.”

Student media wouldn’t exist without students, Harvey said, adding that this creates a unique situation for student journalists. The concern has existed far before ACA came into play.

“That’s the debate as to … are they considered university employees?” Harvey said. “Because we’re a public university as well, so that could create all sorts of things to be concerned about in terms of what First Amendment rights do university employees have?”

Harvey said the student media office is continuing to operate as it always has and — like many organizations — “we’re kind of just trying to figure out what’s going on.” With anything new, there’s a period of time where everyone is figuring out how things will work, Harvey said, but the uncertainty is “frustrating.”

Harvey said he had hoped someone would have stepped in by now to clear things up.

For now, student journalists who are classified as university employees remain in a gray area. Widmer said the uncertainty makes her uneasy.

“You don’t know if anyone understands what a specialty niche we have here and that again, it varies from week to week, from day to day and definitely no two staffs are alike,” Widmer said. “You would like a definitive answer instead of hoping that no one finds you if you’re doing it wrong, but I don’t know that that’s out there yet.”