As litigation continues between the College and the Kenyon Student Worker Organizing Committee (K-SWOC) over the organization’s National Labor Relations Board (NLRB) petition for a union certification election, the debate continues to intensify on campus.
Represented by lawyers from Joyce Goldstein & Associates, K-SWOC submitted a surreply on Dec. 3 in response to the College’s formal request to stay or dismiss its petition for an election.
In the surreply, K-SWOC reiterated the argument it presented in its original Oct. 18 countermotion that Kenyon’s student employees are statutory employees under the National Labor Relations Act (NLRA). K-SWOC also continues to reject the College’s claims that the rules of the Family Educational Rights and Privacy Act (FERPA) prevent the NLRB from enforcing the NLRA. It argued that the College is only obligated by FERPA because it voluntarily accepts federal money and that such an obligation is not a legitimate excuse. The organization also pointed out that the College has not released any worker information to the NLRB, restricted or otherwise.
“The employer cited no statute, regulation, or case law providing that FERPA supersedes or impairs the Congressional mandate that the Board enforce the NLRA according to its terms, through investigations, hearings, and elections,” the document read.
However, while K-SWOC’s legal battle continues, the debate surrounding both their activity and student work on campus is escalating.
On Saturday, international student and Community Advisor (CA) John Ortiz ’22 sent an all-student email following a meeting he had with his supervisors — Director of Student Rights and Responsibilities James Jackson and Assistant Director of Residential Life Trina Trein — regarding a timesheet he submitted over Thanksgiving break. Despite not working over break, Ortiz logged 20 hours for that week in an attempt to be paid for a fraction of the 160 total hours worth of wages that he believes the College has stolen from him.
After the meeting, Ortiz claimed in his email that the College and his supervisors were using his visa requirements to prevent him from logging more than 20 hours of work per week to deprive him of pay. He also accused the College, Trein and Jackson of upholding xenophobic and racist systems.
“[My supervisors] arbitrarily decided that I was not worthy of the most basic form of respect and that I was not deserving of the bare minimum: being paid for my work,” Ortiz wrote. “They took advantage of my limited rights as an international student, and of my personal vulnerability as a student of color, by stealing 160 hours of my wages.”
According to K-SWOC, more than a dozen student workers joined Ortiz in the Zoom meeting to show their support. Soon after the meeting, Jackson and Trein denied Ortiz’s request.
A series of responses followed Ortiz’s initial email, both opposing and supporting his claims.
Prashant Bhandari ’22 — also an international student of color — sent an all-student email in response to Ortiz’s allegations. In his message, Bhandari said Ortiz’s claims of racism and xenophobia against Trein and Jackson were unjustifiable and that all CAs experienced wage theft, not just those who are international students or international students of color. He pointed out that a 20-hour work week is not a rule implemented by Kenyon, but is instead a federal law the College is required to enforce.
According to the Fair Labor Standards Act (FSLA), federal law does not require employees who live on their employer’s premises for an extended period of time to submit an exact record of hours to their employer. Instead, regulations stipulate that if there is a dispute regarding hours that the employee agreed to work for and the hours the employer believes is sufficient to do the job, then the employer needs to reach a new agreement with its employees.
Bhandari also stated that the College pays CAs based on the average number of hours worked per week, not the actual number of hours. Because of this discrepancy, Bhandari stated that Ortiz cannot legally claim wage theft.
In response to Bhandari’s email, Nick Becker ’22 argued that CAs are on call for all 10 of those hours, regardless of whether or not they are actually doing work, which he says is on the College to reevaluate.
“If ResLife is forcing CAs to complete ten-hour duty shifts that, if fairly compensated for, would put international CAs over their weekly hour cap, then it seems to me the only morally acceptable choices Kenyon has is to either change the way they make CAs to do duty shifts or find a way to compensate all CAs that complies with both immigration and labor law for the full amount of work they do,” he wrote.
In addition to back-and-forth among students, professors have also engaged in the public debate surrounding K-SWOC. On Dec. 1, Associate Professor of Economics Galina An sent an email to all Kenyon employees sharing concerns students voiced to her alleging aggressive recruiting behavior from K-SWOC.
In the email, An said some international students had complained of being pressured into signing petitions out of fear of being perceived as someone who does not care about economic hardship. An also said that foreign students felt unsafe, and urged K-SWOC members to “stop pressuring students into supporting them.” Since her email, two Kenyon professors have responded publicly through the all-employee distribution list.
In response to An’s email, Professor Emeritus of Anthropology Edward Schortman sent a lengthy all-employee email, saying that these issues are troubling and all complaints should be taken seriously. Importantly, he emphasized that the union election K-SWOC has requested would alleviate these issues.
Schortman also urged K-SWOC to foster an atmosphere of respect for the rights and dignity of all workers. “K-SWOC’s members must take action to address these accusations by redoubling their members’ training in union outreach,” he said.
In response to Schortman’s comments, K-SWOC member Sally Smith ’23 said K-SWOC appreciates this feedback and will continue to educate its members and organizers about respectful organizing efforts.
Also following Schortman’s email, Assistant Professor of Political Science and Asian Studies Michelle Mood sent an all-employee email pointing out that students tend to avoid confrontation due to a “social norm of politeness,” which often prevents open debate. She also encouraged professors to assure students of their safety, and recognize these debates as an inevitable part of a democratic society that values equality. “Silencing those who shake up norms is not the answer,” she said.
K-SWOC members will have an open meeting with Vice President for Student Affairs Celestino Limas on Thursday at 10:15 p.m. to discuss these and other workplace-related issues.