Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “With ABA Backing, Students on Law Review Rally for Pay,” by Jon Steingart. (Read the full version – subscription required.)

Following is an excerpt:

Law students who serve on law review deserve pay or academic credit in recognition for the labor they contribute to legal scholarship, according to an open letter signed by publication leaders on seven campuses and an American Bar Association resolution.

Seventeen publications signed on to a Dec. 8 editorial and essay explaining that their work produces materials that animate judicial rulings, gives research databases something to publish and helps professors meet tenure requirements. They're published by City University of New York School of Law, Georgetown University Law Center, Stanford Law School, New York University School of Law, Yale Law School, Syracuse University College of Law and UCLA.

"Working as a journal editor prevents students from working to support themselves while in school, and this in turn serves a powerful gatekeeping function in legal academia," it said. "As journal editors, we either forgo or juggle other academic, professional, and personal opportunities and responsibilities."

That has lasting impacts on law students' careers, it said.

"Only those who can afford to work on journals are granted the reputational prestige it confers for clerkships, firm associateships, and other competitive legal positions," it said. "The students who do join journals face greater financial burdens, which disincentivizes them from future public interest work."

It pointed to a resolution that the American Bar Association's policymaking body, its House of Delegates, adopted during an annual meeting in August 2023 that urged law schools to provide pay or credit for students' work on law journals. …

There's no question that schools can choose to pay law review editors. Whether they are obligated to do so depends on whether the work that students perform counts as employment according to federal or state wage and hour laws.

Paul DeCamp, a member of management-side firm Epstein Becker Green, told Law360 that courts and the U.S. Department of Labor have repeatedly determined that students aren't considered employees under federal law when their pursuits are part of their academic learning. He represented several colleges and universities in Berger v. National Collegiate Athletic Association, a 2016 decision of the Seventh Circuit that was the first federal appellate ruling to shut the door on student athletes' claims to employee wages for their participation in interscholastic sports.

Parsing the legislative intent behind the 1938 Fair Labor Standards Act and its amendments over the years since then confirms that academic pursuits that contribute to a student's learning don't count as employment, he said. The U.S. Department of Labor, which executes the statute, has consistently said it understands such activities aren't employment, he added.

"We look at Department of Labor interpretations, longstanding interpretations that have been in place for decades under administrations of both parties without controversy," he said. "These interpretations have uniformly viewed that activity uniformly as not giving rise to an employment relationship."

In Berger, the Seventh Circuit endorsed the DOL's view and observed that students' lives may include many types of activities, such as sports, radio stations, glee clubs, all of which contribute to their educational experience but do not give rise to an employment relationship. It said it was persuaded by interpretive guidance from the DOL explaining that extracurricular activities aren't employment because they're done for the student's educational benefit.

DeCamp noted that law schools are free to choose to provide stipends for students who participate in extracurricular activities. And there are some campus jobs that count as work-study or regular employment and require employee wages, such as shelving books in the library, he said.

"They're hiring people not to further the students' education but to get work done," he said. "That's different from somebody who's doing activity that is in conjunction with the student's academic program. Certainly, law review and other legal journals is part of the academic program of being in law school."

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