March 28, 2008

posted by Paul Secunda

I don't see how it fits, and my experiences with labor and employment law have taught me this rule of thumb: don't ever mess with salary for any reason whatsoever. I'd make sure a serial killer got his full pay on the last day of work.

The FSU scheme reminds me of what the California legislature did to the judges. They don't get their paychecks unless they certify under oath that nothing has been pending more than 90 days. But that means 90 days post hearing, and so now judges just take forever to set appellate hearings and basically have their final opinions in draft form before the hearing.

Paul, is that test exclusive? I.e., dock for any other reason, and the employee is no longer salaried?

Also, where does docking for reimbursement fit in? I've had items deducted from my pay for, e.g., long distance personal calls.

Florida State University is not the only institution to enforce grading deadlines with a financial sanction. American University’s Washington College of Law, where I teach, has had such a policy since 2005. It is as follows:

1.Grades for students are due four weeks from the date of the administration of a faculty member’s last exam for the term. If there was a paper or other project rather than an examination, grades are due four weeks from the date the paper or project was due.

2.When the total enrollment for all of an instructor’s classes for a term is 105 or more students, he or she receives 1 additional day for grade submission for every 7 students above 105.

3.Official university holidays occurring during the grading period are excluded in calculating the date on which a faculty member’s grades are due. For example, in the fall if there are two such holidays, the due date for grades is 4 weeks and two days from the date of the last exam.

4.Unless a request for an extension, submitted to the Registrar, has been approved by the Deans’ Office, names of instructors whose grades are late will be posted in the law school registrar’s office and in the DOCKET. The Deans for Faculty and Academic Affairs should implement a $100.00 per work day fine when waiver requirements do not apply. In addition, the dean may consider late submission of grades in determining raises and summer grants.

No fines at the law school. We rely on shaming and denial of birthday cake.

Bruce, it is exclusive in the sense that if the type of deduction is involved is not listed in the FLSA regulations, then you are in danger of losing the exemption for the individuals involved. To be exempt, one has to meet this salary basis test, as well as the duties test under the FLSA. Making a deduction for pay for non-recognized reason often leads (if the DOL notices or a complaint is filed) to the employer losing that exemption for the period involved.

Also, I don't believe that it matters where it is an actual pay check deduction or denominated an "administrative fee." It comes down to the way in which you treat the employee as far as the quality or quantity of their work in a given week. If you are exempt, the amount of time at work or amount of work you do should not impact what your salary is on a week to week basis. Grading is related of course to professor work, and whether it is an administrative fee or pay check deduction, the practice seems problematic to me.

Sorry, Bruce, forgot to mention reimbursements. Other types deductions on your pay check (for phone calls, benefits, parking, fitness center membership, etc.) are only permitted because the employee generally has consented to such deductions. This is actually not a FLSA issue, but one that comes up under state wage payment and collection laws.

Wow... if faculty put that much effort into the grading as worrying about defenses to sanctions for missing the deadlines, maybe it wouldn't be an issue! I kid... :)

But really, as a student, I don't get cut any slack for missing a deadline to turn in an assignment unless there are extreme circumstances--I see absolutely no reason faculty shouldn't be held to the same standard. Students rely on grades for many things--as pointed out in the article--I know grading is thankless and difficult, but missing those deadlines--when students are relying on faculty to simply perform one of their required job functions--is incredibly arrogant and disrespectful to the students.

Paul,

The statement didn't say that professors' pay was docked. That might seem a fine distinction, but it seems to me that if the grade penalty is a fine, then it's not necessarily a deduction in pay. It would become a debt owed to the school (which the employee agreed to pay upon signing their employment contract), which the school might then collect through traditional debt collection procedures.

Chicago-Kent does something like this. They fine professors per day that the grades are late, but not per student (at least as far as I can remember). Although this never happened to me, I got the impression that the fine was paid out of the faculty member's expense budget. Faculty got a certain amount of money that could be spent on business-related things like conference travel or books. If that is true, then there wouldn't be an FLSA problem. And I would imagine that stipends or grants could be denied or something without running afoul of the FLSA.

Marcia, thanks for the great comments. I agree with you that it is a "fine" and not a docking of pay, but I think it can be characterized as a "deduction" of a "penalty" (the regulatory language) based that it is linked to the amount of work one does in a given week.

But you are right that if the fine is denominated a "debt," than state Wage Payment Laws apply, not FLSA, and the employer might have to sue for it in small claims court. In this circumstance, the debt could not be collected consistent with state law out of the employee's paycheck without her consent.

Finally, the way Chicago-Kent does or did it seems less objectionable for the reasons you mention.

This was just a tossed-off bit in this post, but how on earth could this be construed as a limitation of academic freedom? Maybe I'm missing something, but I'm pretty sure "feel free to write about controversial subjects without fear of majority oppression" doesn't analogize well to "slack off on grading if you've got better things to do".

I don't enjoy grading much, and when you teach LRW, it can be particularly painful looking at 30 versions of the same brief and trying to give individualized, substantive, lengthy feedback to each.

But good lord, this is part of the job! Teaching IS the job, and part of teaching is grading. Moreover, a good part of law school is teaching professionalism; how can we expect professionalism of our students if we don't display it ourselves?

Law professors get away with giving so little feedback that I have little patience for any excuses here. And yes, I recognize that there are extraordinary circumstances that may require exceptions. But let's be honest; that's not what's driving this. It is pathetic that a school has to resort to sanctions like this.

These words may come back to haunt me as I begin a tenure-track career. But I hope that if I am ever late with grades, students will dig up this comment and wave it in my face.

As one professor blogger that I've read said, "I'd teach for free. They pay me to grade."

I think this is obvious. The Law School doesn't really care about losing the exemption. Who ever heard of a law professor working overtime!?!?!?!

I think this is obvious. The Law School doesn't care about losing the exemption. Who ever heard of a law professor working overtime!?!?!?