{shortcode-09b55e9aee0aba5cc924dd4df05abfb6f63d386a}

{shortcode-a0fafb3727a5405eac46bd1741f1eafab86bbf7e}arvard has maintained for years that it is not the employer of contracted security guards who work on the University’s campus. But with a new case awaiting trial with the National Labor Relations Board, experts say the Board could hold Harvard liable as an employer for complaints of misconduct.

That determination, if upheld by a judge, would make Harvard responsible for unfair labor practices and likely mandate that the University and the guard’s employer, Securitas, bargain jointly with the union, Service Employees International Union 32BJ.

Walter J. Terzano, a security guard at Harvard, filed an unfair labor practice charge with the NLRB on April 15, 2022, claiming the University and Securitas retaliated against him for organizing a protest.

In a complaint and notice of hearing issued Sept. 14, 2023, the NLRB alleged in its own right that Harvard and Securitas retaliated against Terzano, violating national labor law in the process.

Terzano and more than 300 other guards are officially contracted workers through Securitas, an international security services company unaffiliated with the University. Terzano, 78, has worked for Securitas since 2009.

Labor law experts said the NLRB’s complaint labels Harvard as a joint employer and could significantly change how the University contracts guards.

“I think it is important for entities like Harvard to know that they can’t get away with taking actions that violate employees’ rights, even if they deny they are the employer because they very well could be held to be the employer,” said Shannon E. Liss-Riordan ’90, a labor lawyer who has successfully brought class action lawsuits against Whole Foods, Uber, and Starbucks.

In its Sept. 28 answer to the complaint, Harvard admitted that then-Director of Facilities and Maintenance Kate Loosian had complained to Securitas about Terzano, but said the complaint was made “for legitimate business reasons” and not to dissuade other guards from protesting.

“Harvard is not the statutory employer” and thus “cannot be held liable for a violation” of the National Labor Relations Act, Harvard wrote in its answer. The NLRA allows private employees to form unions, strike, and engage in collective bargaining.

Securitas also denied any violation of labor law in its Sept. 27 answer, adding Loosian’s complaint regarded “inappropriate and discriminatory remarks” that Terzano allegedly made toward another employee. The company said its decision to remove Terzano from campus was in response to a request that he not be returned.

Securitas Area Vice President Christopher Connolly and Area Manager Alonzo B. Herring did not respond to multiple requests for comment, and Harvard spokesperson Jason A. Newton declined to comment for this article.

Terzano also declined to comment, citing the advice of his legal counsel.

The Outsourcing Model

After replacing its last 17 in-house guards with contracted workers in 2003, Harvard has relied entirely on contracted workers for campus security. The switch absolved the University of much of its legal responsibility for the campus’ guards, whom it no longer officially employed.

The outsourcing issue reached a boiling point in 2001, when dozens of students staged a three-week sit-in at Massachusetts Hall to demand Harvard pay all workers a living wage, contracted and directly employed alike.

John T. Trumpbour, research director of the Center for Labor and a Just Economy at Harvard Law School, said he believes the University was pressured to respond by politicians including then-Sen. Ted Kennedy ’54-’56, who spoke outside Massachusetts Hall.

In response, Harvard established a committee led by Economics professor Lawrence F. Katz ’91 to address wages and establish guidelines for outsourcing. The committee later concluded that outsourcing had driven wages down by 7.5 percent between 1994 and 2001.

In its final report, the committee recommended that Harvard commit to “parity” in wages and benefits between official Harvard employees and subcontracted workers in comparable positions as an assurance to union leaders that outsourcing would no longer drive wages down. Harvard adopted the policy in 2002.

But when the University replaced the last official security guard positions a year later, citing financial concerns, there were no longer directly equivalent in-house positions with which to compare its subcontractor wages.

“It’s been actually kind of a mystery as to what category of person at Harvard is considered to be our equivalent for parity purposes,” said Aryt Alasti, a Securitas guard who has worked at Harvard since the ’90s.

Trumpbour said the outsourcing model was partially “designed to sometimes allow the University to escape accountability.”

The question of who takes accountability — Harvard or Securitas — came into full view last May, when another security guard, Mike Grant, faced disciplinary action from Securitas after a Harvard manager complained.

Grant, a Leverett House guard, appeared before a disciplinary hearing after he refused to confiscate two students’ personal property as instructed by the House’s Harvard-employed building manager, Mohamed Zaker. The two students defended Grant, and 1,400 people signed a petition urging Securitas not to fire him.

{shortcode-0d9cc0d6b9d64030629c154b390d0f51123329f6}

“Our Human Resources Department, they don’t back us,” Grant said in an interview in May. “Their main priority is, ‘Harvard is our client and we’re going to do everything in our power to make Harvard happy.’”

Grant kept his job, but Trumpbour said his case is a prime example of the sometimes blurry lines between employee and subcontractor.

“It’s very easy a lot of times for Harvard to say, ‘Oh, well that’s a Securitas decision’ even though sometimes it’s a Harvard supervisor official who approaches Securitas and complains about somebody,” Trumpbour said.

The Case in Question

At the heart of Terzano’s case is a protest he staged at former President Lawrence S. Bacow’s house in early 2022. The protest occurred amid contract negotiations between the guard’s union, SEIU 32BJ, and Securitas.

Less than a month after the protest, Loosian — a Harvard employee — complained to Securitas representatives about Terzano, causing his suspension and then removal from campus.

After NLRB agents investigated, they concluded Terzano’s suspension and reassignment were jointly determined by Harvard and Securitas and constituted violations of the NLRA taken to discourage similar protest.

Liss-Riordan, who specializes in contractor misclassification suits, said that in Terzano’s case, Harvard “took an action that actually directly impacted somebody’s work.”

“To me, it does feel like the worker is being punished for this protest activity,” Trumpbour said.

“It’s not a particularly good look,” he added.

{shortcode-702c132a8095dc9c833e31387369f7c61cc1da43}

While both respondents maintain the complaint was made on legitimate grounds, neither disputes that the complaint caused Terzano’s involuntary transfer, even though Harvard insists Loosian did not direct Terzano’s transfer.

Angela B. Cornell, director of the labor law clinic at Cornell Law School, said that the Board’s decision to issue a complaint in the first place is significant even before a judge hears the case.

“They do a very good job at investigating the allegations before they decide whether to issue a complaint or not,” Cornell said. “Most cases are dismissed or withdrawn because they are going to be dismissed.”

NLRB Regional Director Laura A. Sacks set Terzano’s hearing for Jan. 9, 2024. The Board will serve as his representative before an NLRB administrative law judge.

“As a lawyer who practices before the Board, it’s a big goal of ours to get the Board to issue a complaint,” Liss-Riordan said.

She said that even after the ALJ makes a ruling in Terzano’s case, either side can appeal to court.

“Sometimes these cases can go on for years and years,” Liss-Riordan said.

‘Direct Control’

The NLRB’s decision to issue a complaint in Terzano’s case comes amid substantial national changes to the standard by which the Board determines whether an entity is a joint employer.

“There is a huge issue going on in labor law today where employers are trying to offload responsibility for their employees by outsourcing and denying any possible liability because they are not the actual employer,” Liss-Riordan said.

The NLRB announced its final rule on the Joint Employer Standard Oct. 26, dramatically decreasing the threshold for classifying a contracting entity as an employer. But the rule will only apply to charges filed after Dec. 26, 2023, meaning Terzano’s case will likely be considered under the previous 2020 rule instituted under the Trump administration.

{shortcode-02575ac38d62382439aaacc663bd6cd57a5a274b}

Under that rule, a company could only be held to be a joint employer when it exercises “substantial direct and immediate control” over the essential terms and conditions of a worker’s employment, a standard which Cornell said “favors employers.”

“The current Board, appointed by President Biden, and with a General Counsel appointed by Biden, is much more employee friendly. The Trump appointed Board tilted to employers’ interests,” Cornell wrote in a follow-up emailed statement to The Crimson.

But Cornell said the distinction between rules is not as relevant in Terzano’s case because the NLRB has alleged causal intervention by Harvard.

“This wasn’t reserved control that Harvard had. It sounds as if it was direct control,” Cornell said. “That is why the Board issued the complaint even though the new rules are not enforced yet.”

“Even with the more narrow, restrictive standard that required substantial direct and immediate control over terms and conditions of employment, it appears to me that the Board has seen enough to reach the conclusion that they are joint employers,” she added.

Cornell said the new Biden administration rule will likely be referenced in and will aid Terzano’s case even if the new standard is not directly applied.

“Even if the Board applies the old rule on joint employer, we will likely get some indication of how the new rule might be applied in the future. This may be the first case that gives us a glimpse of the changing joint employer doctrine—even if it is not applied,” Cornell wrote.

Liss-Riordan also said the complaint alone means the NLRB believes Harvard jointly employs the guards.

“This case could have big ramifications nationally,” Liss-Riordan said.

—Staff writer Cam E. Kettles can be reached at cam.kettles@thecrimson.com. Follow her on X @cam_kettles or on Threads @camkettles.