Problems with postdoc employment status, part 1: internally funded postdocs

Editor’s note: this is the first instalment of a three-part series on the employment status of postdoctoral scholars in Canada.

The employment status of postdoctoral fellows and scholars in Canada has long been the subject of contentious debate. Universities, hospitals and affiliated research centres have often fought to maintain the tradition of classifying postdocs as students or trainees against an increasing number of postdocs determined to gain access to statutory benefits – employment insurance and Canada Pension Plan eligibility, or the Quebec equivalents – provincial employment standards and/or collective bargaining rights.

For their part, externally funded postdocs (i.e., those who receive income from fellowships paid by external agencies) have generally accepted the student/trainee classification with little controversy, as it is difficult, under Canadian law, to establish that an institution is the employer of a postdoc if it does not pay that person. However, the same cannot be said of the internally funded postdocs who receive income from research funds that are held and managed by their institutions (e.g., research grants held by their supervisors or fellowships from their institution). This latter group has increasingly challenged institutional policies by seeking employment status rulings from the Canada Revenue Agency, engaging in lobbying efforts at the institutional, provincial and federal levels, and launching union drives to attain employee status and collective bargaining rights via the provincial labour boards.

Prior to 2010, those approaches had achieved little success. Few institutions had adopted employee status for internally funded postdocs, the labour boards had thus far only allowed postdocs who were already recognized as employees to unionize, the Tax Court of Canada had twice ruled that postdocs were students rather than employees in cases arising from appeals of CRA rulings (Bekhor 2005; Naghash 2005), and the provincial and federal governments had generally ignored this issue entirely.

However, that all changed over the course of the following decade, beginning in 2010, when the Harper government finally weighed in on the status of postdocs for the purposes of taxation. Contrary to prior rulings by the court and labour boards, the government proclaimed that postdocs are workers, not students, and are therefore expected to pay their fair share of income tax regardless of their source of income.

Finally, some clarity

This could well have signalled the end of the postdoctoral employment status debate, but the government opted to ignore the fact that postdocs were regularly denied access to the statutory benefits afforded to other Canadian workers and merely amended the Income Tax Act to ensure that postdocs could not claim student tax breaks. Thus the issue of postdoctoral employment status was left to the courts and tribunals to decide, and they did so in the years that followed, with back-to-back rulings (against existing precedent) in the Tax Court that internally funded postdocs were employees (Chabaud 2011; Caropreso 2012), and landmark decisions by labour tribunals in both Ontario and Quebec (CUPE v UofT 2012; SPODOC v UQAM 2011; PSAC v EP 2013; Ndayizeye 2012) that led to the unionization of record numbers of postdocs. In the wake of these rulings, there was little doubt that both the Tax Court (whose decisions guide the employment status rulings of the CRA) and the labour boards had finally decided that the proper classification, at least for internally funded postdocs, was that of employee.

In the years following those decisions, employee classification was gradually adopted across the country, due primarily to continued action on the part of postdocs, and particularly the success of postdoctoral associations in unionizing and lobbying for legislative change in Alberta. Today, as a result of those efforts, we have finally reached the point where postdoctoral employees are found in every province of the country and the majority of institutions (43 out of 65 by my count) that employ postdocs in Canada – including all of the largest research universities in the country, the U15 – now classify internally funded postdocs as employees. And yet, some institutions continue to classify these workers as students or trainees and others as employees of their supervisors (a not-so-subtle tactic to block postdoctoral unionization).

Resistance is futile

This article is intended as a wake-up call for those institutions and their postdocs. The time when this behaviour was acceptable has passed and institutions that persist in refusing to acknowledge internally funded postdocs as employees are now quite obviously denying those workers the benefits, rights and protections that they are entitled to by law. If you are an administrator at an institution that continues to engage in this practice you should immediately seek to rectify that situation. Failure to do so will inevitably lead to a CRA ruling or union drive down the road and the outcome of either will almost undoubtedly be in favour of employee status at this point.

If you are an internally funded postdoc at such an institution, I would encourage you to raise this issue with your administration and fight for your rights if you are so inclined. Alternatively, I would suggest that you seriously consider looking for another postdoctoral position – it is now 2020 and you can do better than an institution that claims to recognize your value while refusing to acknowledge your rights.

Joseph S. Sparling is a freelance policy analyst/advisor who holds a PhD in neuroscience from the University of British Columbia and spent nearly four years serving on the executive council of the Canadian Association of Postdoctoral Scholars, including two consecutive terms as chair.