NLRB Rules Grad Students Are Employees, Can Unionize

by Hirschfeld Kraemer LLP

Hirschfeld Kraemer LLP

Student Assistants at Private Universities Are “Employees” for Purposes of Collective Bargaining, NLRB Rules

Student assistants employed with private universities can be considered “employees” for the purposes of the organizing and collective bargaining, the National Labor Relations Board ruled in a significant decision that overrules existing precedent on the issue. The NLRB’s August 23 decision comes in the matter of Graduate Workers of Columbia – GWC, UAW v. The Trustees of Columbia University in the City of New York (Case No. 02-RC-143012). The potential impact to each institution must be assessed by each campus – the ruling pertains to undergraduate and graduate level assistants and may thus have substantial ramifications.  Natasha Baker and the authors of the amicus brief noted below will be conducting a webinar on September 13, 2016 from 12-1 PT.

A trio of law firms, representing more than a dozen firm members of the Higher Education Council of the Employment Law Alliance (ELA)* filed an amicus brief in this case earlier this year. Counsel for the amici included Peter Jones of Bond Schoeneck & King LLP; Natasha Baker of Hirschfeld Kraemer LLP; and Mark Mathison and Meghann Kantke of Gray Plant Mooty, P.A. – all members of ELA’s Higher Education Council. Consistent with existing law, the amici argued that there was “no reasoned justification” for the NLRB to overrule its own precedent on the issue, Brown University, 342 NLRB 483 (2004), and that characterizing student assistants as “employees” would substantially harm and alter the “fundamentally academic” nature of the relationship between universities and their students.

The new NLRB decision rejected those concerns in holding that student assistants are employees, instead reversing Brown University, which it characterized as having “deprived an entire category of workers of the protections of the Act, without a convincing justification in either the statutory language or the policies of the Act.” The 3 – 1 Columbia University decision included a lengthy and well-reasoned dissent by Board Member Philip A. Miscimarra, who noted that Congress never intended the NLRA to apply to students and also that the NLRB’s processes and procedures were an ill fit for the relationship between students and their academic institutions.

Because issues remained regarding the appropriate voting eligibility formula, the NLRB remanded the Columbia University case to the NLRB Regional Director’s office for further proceedings. We will continue to keep our clients informed as this case progresses.

*The following Higher Education Council member firms joined the amicus brief:

  • Bond Schoeneck & King, PLLC (Syracuse, N.Y.)
  • Dinse, Knapp & McAndrew, P.C. (Burlington, Vt.)
  • Dinsmore & Shohl LLP (Cincinnati, Ohio)
  • Gray Plant Mooty, P.A. (Minneapolis, Minn.)
  • Hirschfeld Kraemer LLP (San Francisco, Calif.)
  • Ice Miller LLP (Indianapolis, Ind.)
  • Jackson Kelly PLLC (Charleston, W.V.)
  • Miller Nash Graham & Dunn LLP (Portland, Ore.)
  • Morgan Brown & Joy LLP (Boston, Mass.)
  • Parker Poe Adams & Bernstein, LLP (Charlotte, N.C.)
  • Reed Smith LLP (Pittsburgh, Pa.)
  • Shawe Rosenthal, LLP (Baltimore, Md.)
  • Tueth, Keeney, Cooper, Mohan & Jackstadt P.C. (Saint Louis, Mo.)

About the Higher Education Council of the Employment Law Alliance:

The Higher Education Council of the Employment Law Alliance consists of firms and lawyers committed to serving institutions of higher education. Its attorneys provide national and worldwide support and advice on such issues as labor and employment, intellectual property, establishing out-of-state and overseas programs and campuses, regulatory compliance and immigration. The firms work together to ensure that client needs are met wherever, whenever.

About the Employment Law Alliance:

The Employment Law Alliance is the world's largest network of labor, employment and immigration lawyers. With specialists in more than 135 countries, all 50 states and each Canadian province, the ELA provides multi-state and multi-national companies with seamless and cost-effective services worldwide.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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