Summary

Reversing more than a decade of precedent, the activist National Labor Relations Board (NLRB) ruled on August 23, 2016 in The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia–GWC, UAW that graduate and undergraduate teaching assistants and graduate research assistants who perform services in connection with their studies at private universities may be statutory employees under the National Labor Relations Act (NLRA).  The NLRB has now broadly interpreted the statutory definition of “employee” in Section 2(3) of the NLRA so that it encompasses students who are compensated for work performed at the direction of the university.  Importantly, the fact that these “employees” also have an educational relationship with the university did not preclude the NLRB from finding an employment relationship.   

The NLRB’s decision in Columbia University is a stark departure from the Board’s 2004 decision in a similar case involving Brown University. In that case, the NLRB held that graduate teaching and research assistants at Brown who supervised teaching or research as an integral component of their academic development were not employees under the NLRA because they had a “primarily educational, not economic, relationship with their university.”  The Columbia University decision continues the current Board’s disregard of precedent and returns the Board to its pre-Brown ruling in a case involving New York University, where it held that graduate students were statutory employees even though they were “predominantly students.”   

In an effort to justify the reversal of the law that has existed for the last 12 years, the Board explained that it was overturning Brown University because a prior Board erred when it interpreted Section 2(3) to exclude students.  Specifically, the NLRB opined in Columbia University that its predecessor was wrong in Brown University when it held that student employees cannot be statutory employees simply because they “are primarily students and have a primarily educational . . . relationship with their university.” It stated further that statutory coverage as an employee is not foreclosed by the existence of some other, “additional relationship,” such as an educational relationship, outside the Act’s purview. The NLRB also determined that Brown University did not consider “the nature and consequence of the [statutory interpretation] error,” nor that the NLRA does not directly address the student-employee issue.

To reach its conclusion, the Board did not rely on a factual distinction between cases.  Instead, the Board noted that the NLRA is designed to encourage 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.” Considering the policy behind the statute and the “very broad statutory definitions of both ‘employee’ and ‘employer,’” the NLRB concluded that Columbia’s graduate and undergraduate teaching assistants and graduate research assistants who are compensated for their services by the university, are employees under the NLRA.  The Board further noted that Brown University failed to take the NLRA’s policies or broad statutory interpretation into account, thereby depriving “an entire category of workers of the protections of the NLRA, without a convincing justification.”  Interestingly, the Board’s decision seems at odds with a recent guidance issued by the United States Department of Labor that graduate teaching and research assistants are not employees under the FLSA and thus, not covered under the new December 1, 2016 salary basis exemption regulations.  

The decision in Columbia University, while likely to be appealed, has significant implications for private universities, including the requirement to collectively bargain with certain student workers. Private universities may need to consider how the decision will impact addressing key issues in graduate and undergraduate student education, including financial aid and degree requirements.  If a collective bargaining relationship is established, universities will need to consider the influence such an agreement will have on academic freedoms and student-professor relationships. Moreover, in reaching the conclusion under common law that the student workers are employees under the NLRA, Columbia University disregarded  the DOL’s recent guidance finding that graduate teaching and research assistants are not employees under the FLSA.  This dichotomy may need to be squared in the coming months before the December 1, 2016 implementation date of the new FLSA regulations.