Talking Stick - September/October 2014 - 58

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cOntInued

SPECIAL FOCUS

issued, compliance with the relevant
employer reporting rules, coverage of
all the patient protections in the ACA,
coverage of preventive health services,
coverage of clinical trials, mental
health parity rules, compliance with
the Newborns' and Mothers' Health
Protection Act, compliance with the
Women's Health and Cancer Rights
Act, and others.

what about ra on-call
hours? Do they count toward
the 30 hours?
On-call hours would count toward
the 30 hours. However, this merely
opens up the question of what is
legally considered on-call. The IRS
rules specify that an employer must
credit an employee with an hour
of service for any on-call hour for
which payment is made or due by the
employer, the employee is required
to remain on-call on the employer's
premises, or the employee's activities
while remaining on-call are subject to
substantial restrictions that prevent
the employee from using the time
effectively for their own purposes.
Unfortunately, beyond that, they
have not yet provided any special
rules for RAs. Obviously, RAs may
have more freedom while on-call
than some other types of workers, as
they live and work in the same place.
However, there are still restrictions
on an on-call RA's activities. For
example, he or she can't leave the
campus area, or a certain area of
campus, and the RA must respond to
communications from the institution.
If these are the expectations for the
employee, any on-call hours likely
should be counted for purposes of the
ACA measurement rules.
What has been suggested is
that offices review and revise the
description of duties for RAs to try
to narrow them - or clarify them
- so that they clearly specify what
on-call hours they get paid for, the

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limited circumstances when they
are required to remain on premises,
and that other than the times they
are required to remain on premises
they have the freedom to use their
time for their own purposes. This
revision should be done with the
assistance of a consultant or a campus
attorney. Further clarification of this
interpretation of what constitutes oncall status is still needed, but for now
that is the law.

what about ras who are
compensated by having their
room and board paid for by
the institution? would they
need to be covered?
In this case, it is advised to check with
an institution's legal staff for further
consideration. In general, though,
Long states that "If they're receiving a
W-2 [from your institution]," they are
likely employees."

How should the working
hours of ras and other
student employees be
monitored?
The best approach for managing
student employee hours is
documentation, and plenty of it.
First of all, a housing department
needs to have recorded what the
RAs' expected hours are, based on
the duties outlined in the position
expectations. This should include
on-call hours. Thus far, the IRS has
declined to issue further instructions
on whether student employees'
on-call hours are any different from
full-time professional employees' oncall hours. So, for the moment, both
regular duty hours and on-call hours
are counted toward the 30-houra-week average that determines
healthcare eligibility, unless the
student is employed by a federal
work-study program.
Secondly, it is important to inform
the resident assistants exactly what

duties and hours are expected of them
each week and month. Also, make it
clear that incidental "work" completed
outside of these hours and duties
- speaking with a resident in the
campus recreation center, assisting
with a housing situation asked about
during a casual conversation in the
lobby - do not count toward their
weekly total hours. These tasks are
simply done out of good will.
In the document in which the
work duties are described and what
does and does not constitute work
is clarified, note how many hours
it is estimated the paid work will
take. If needed, provide estimates
for different periods of the year; for
example, move-in week is 30 hours,
but an average week in the fall
semester is 15.
Be very specific about the
requirements of on-call hours and
on-duty hours versus off-hours, and
be accurate about estimating the time
needed for the job duties. It may
be necessary to prioritize the RAs'
duties, to select the tasks that must be
done versus the ones that have been
traditionally done by RAs.
Finally, if it doesn't already exist,
a department should implement a
system to carefully track RAs' actual
hours worked and teach RAs how
to use it. This includes training
about how to input on-duty and
on-call hours into the system. This
documentation will not only serve
to help the department and the RAs
track hours and duties, but it will also
be useful if there are any questions
from campus administrators or
federal entities about RA working
time and compensation. "You're
going to have to be a little creative,
and creative doesn't mean doing
anything wrong," says Long. "But be
a little creative, and work with people
who are going to be a little creative
with you, to help try to craft rules that
will align with the ACA and what's
actually going on."
Talking Stick - September/October 2014

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