Graduate Assistants are Employees (Again)

15 March 2021 Labor & Employment Law Perspectives Blog
Authors: Donald W. Schroeder

This past Friday, the National Labor Relations Board (NLRB) withdrew a controversial proposed rule that would have prevented graduate teaching and research assistants from attempting to unionize at private colleges and universities, citing its determination that the Board would instead “focus its time and resources on the adjudication of cases currently in progress.”  By way of background, in September 2019, the NLRB issued a notice of proposed rulemaking that would have established that students who perform “any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies” are not statutory employees as defined by the National Labor Relations Act (NLRA).

While the Board has certainly issued sweeping procedural rules in the past, this step would have been an end-run around the historical manner in which the Board has operated with respect to this hotly contested issue.  By eliminating the specter of a final rule that would eviscerate existing Board precedent established in the 2016 Columbia University decision -- where the NLRB held that student assistants “who have a common-law employment relationship” with their college or university are covered employees within the confines of the NLRA -- the Board’s recent action paves the way for unionizing efforts throughout the private higher education landscape.

History Repeats Itself

There are a number of well-known traditional labor law doctrines that have a tortured history where, for example, in one decade, the doctrine is in vogue, but in another, the doctrine has been cast aside by the NLRB.  This “Jekyll and Hyde” phenomenon certainly holds true on the subject of graduate assistants in the college and university setting.  Dating back to at least 1974, the Board has grappled with the issue of whether graduate assistants are statutory employees entitled to the protections of the NLRA or are primarily students who are not eligible to form a union at a private college or university.  The issue has taken on more significance over the past 20 years or so as a diverse group of unions have engaged in unionizing efforts within higher education throughout the United States.  

In a 2000 decision that overruled long-standing precedent, the Board determined for the first time that there was “ample evidence” that graduate assistants performing research or acting as teaching assistants (TAs) were employees because they worked under the direction or control of the college/university and received compensation for their services.  Just four years later, with a different makeup of Board members, the NLRB, in its 2004 Brown University decision, held that the relationship between the graduate student assistants and Brown University was “primarily educational” and therefore this category of individuals fell outside of the NLRA. 

Changing course once again in 2016, the Board, in Columbia University, rejected the Brown University decision, holding that the NLRB has “the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated.”  Going one step further, the Board noted that statutory coverage “is not foreclosed by the existence of some other, additional relationship that the Act does not reach.” The NLRB’s September 2019 proposed rule would have nullified the Board’s recent 2016 decision. 

Practical Implications Require Immediate Attention

When the NLRB initially announced its proposed rule-making in late 2019, a number of unionizing efforts at various colleges and universities hit the “pause” button.  Based on the Board’s then-current makeup with a Republican majority, unions were well aware that if any election petitions received expedited review, the Columbia University holding was in jeopardy.  While the Board was poised to implement a workaround through rule-making, it would have certainly led to litigation in federal court.  Now, it should be expected that organizing efforts will proceed full steam ahead.  Although the Board still maintains a 3-1 Republican majority, President Biden appointed Lauren McFerran, the lone Democrat, as Board chair.  With one open seat and the impending expiration of Republican appointee William Emmanuel’s term in August 2021, the Board’s composition is poised to change dramatically once again. 

As a result, with the Columbia University decision firmly in place for the next few years (at the very least), college and university administrators should conduct an immediate “top-down” review of their policies, procedures and protocols for graduate research and teaching assistants.  The most effective way to prevent the emergence of union organizing is to ensure that the lines of communication are open between administrators and graduate students.  In addition, administrators and staff should receive “Labor Law 101” training so that they are well aware of the “do’s and don’ts” during a potential union organizing campaign. 

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