Whether an individual is an “employee” entitled to all the protections of the National Labor Relations Act (NLRA), or a “student” who has no such rights, has been a recurring and hotly contested issue before the National Labor Relations Board (NLRB). Just last week, in Icahn School of Medicine at Mt. Sinai, an NLRB regional director concluded that a teaching hospital's residents, interns, chief residents, and fellows—known collectively as “house staff”—were employees under the NLRA.

In its petition, a Service Employees International Union-affiliated local, the Committee of Interns and Residents Local 1957, sought to represent 140 house staff employed at Elmhurst Hospital, a publicly run acute-care facility in Queens, New York. The medical school challenged the employment status of the doctors, relying on the NLRB’s 2004 decision in Brown University, which found that the university’s graduate student teaching and research assistants were primarily students, not employees. In reaching his conclusion, the regional director relied instead upon a 1999 ruling in Boston Medical Center Corp., in which the NLRB held that medical interns, residents, and fellows in post-medical school programs were “employees” and not students.

In Boston Medical Center, the Board overruled several decisions from the 1970s and held that these doctors were statutory employees, given that they no longer registered for classes, spent most of their time providing direct patient care, received annual compensation and fringe benefits such as health insurance, and were covered by worker’s compensation and malpractice insurance. In 2010, the NLRB was asked to reconsider its Boston Medical Center decision in light of Brown University. However, ruling in St. Barnabas Hospital in 2010, the Board declined to do so.

The Icahn School of Medicine may request that the NLRB review the regional director’s decision, but it is not expected to do so. If no appeal is filed, a date will be set for an election among the house staff to determine whether the union will represent them in their dealings with their employer.

More recent developments suggest that the NLRB may be open to reconsidering Brown University and may be willing to change course and find graduate students to be employees. Most recently, the Board has been asked to consider whether student athletes at Northwestern University are employees entitled to unionize, rather than students.