On August 23, 2016, the National Labor Relations Board (NLRB) issued a decision in The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia-GWC, UAW. The NLRB decided that graduate and undergraduate student assistants are common law “employees” within the meaning of the National Labor Relations Act (NLRA). The NLRB has flip-flopped on this issue several times starting in 1974 (The Leland Stanford Junior University (214 NRLB 621) which first held student workers should be excluded from the statutory definition of “employees”, overruled in part in 1999 with regard to student interns, residents and fellows at a Boston Medical Center teaching hospital (330 NLRB 152). In 2000, the Board first held that university graduate student assistants were employees under the Act. In 2004, the Board decided in Brown University that graduate student assistants were not “employees”.
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The impact of the NLRB’s most recent Columbia University decision is that student assistants are “employees” and, as such, they are eligible to organize and bargain collectively under federal labor law. The Board expressly overruled its prior Brown University and Leland Stanford decisions.
The policy behind the NLRA is to “encourag[e] the practice and procedure of collective bargaining” and to “protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.”
The ongoing difficulty in categorizing student workers as “employees” stems from the fact that the NLRA statutory language in question does not actually define “employee” but rests on the common-law definition. The Act excludes persons who are employed by entities excluded from the definition of “employer”. The Act does not expressly exclude persons from the definition of “employer” based on the existence of an additional relationship. The previous 2004 Brown University decision had rested on a rationale that student graduate assistants are students first, with a primarily educational, not economic, relationship with the university. In the Columbia University decision, the Board revised its thinking because, like any other “employee”, these students perform work, at the direction of the university, for which they are compensated. The Board could no longer see a justification for excluding these student assistants from rights afforded to other employees to organize and bargain collectively, just because they also have an additional (educational) relationship with their employers. To the contrary, the Board stated, it is appropriate to extend the Act’s coverage to student workers unless there are strong reasons not to do so.
The fact that student assistants have relatively short, finite tenures was an insufficient reason, in the Board’s view, to deny bargaining rights to an entire category of employees. Instead, this issue could be addressed by establishing rules for voter eligibility.
Board Member Miscimarra dissented, arguing that the Brown University reasoning was correct and that the educational nature of the relationship between student and institution dictates that student assistants are not employees and should not be eligible for the Act’s protections.
After this decision, educational institutions (public and private, for-profit and non-profit) be aware that their student workers are “employees” for purposes of the NLRA with the right to seek unionization and to collectively bargain.