Recognizing the Workplace Rights of Student-Workers: Adapting Labor Law for the 21st Century
For over eighty years, workers acting collectively to improve the terms and conditions of their employment have been protected by the National Labor Relations Act. National Labor Relations Act, ch. 372, § 7, 49 Stat. 449 (1935) (current version at 29 U.S.C. § 151 (2012)). This means that when workers get together and ask management to do things such as raise wages, improve workplace safety, or recognize a labor organization of their choosing, they are legally protected from retaliation. Id. In the decades following the Act’s implementation, membership in labor organizations skyrocketed, and—although union membership is currently at a historic low—workers today are seeking unions in traditionally union-free industries. This includes writers at new media companies, interns, and even college athletes. See Jonathan Timm, Can Millennials Save Unions?, Atlantic (Sept. 7, 2015), http://www.theatlantic.com/business/archive/2015/09/millennials-unions/401918/.
However, in order for these groups to enjoy the protections of the Act, they must fall under the Act’s statutory definition of an employee. 29 U.S.C. § 152(3) (2012). Labor unions and major universities have persistently disagreed as to whether student workers “who perform services in connection with their studies” constitute statutory employees. Trs. of Columbia Univ,, Case 02-RC-143012, 2016 WL 4437684, at *1 (NLRB Aug. 23, 2016); see also Josh Eidelson, Can Graduate Students Unionize? The Government Can’t Decide, Bloomberg (May 12, 2016, 1:28 PM), http://www.bloomberg.com/news/articles/2016-05-12/can-graduate-students-unionize-the-government-can-t-decide. While the National Labor Relations Board (NLRB) ruled in 2000 that these students were employees under the Act, N.Y. Univ., 332 NLRB No. 1205 (2000), four years later it reversed course, stating “graduate student assistants . . . are primarily students and have a primarily educational, not economic, relationship with their university.” Brown Univ., 342 NLRB 483, 487 (2004). In order to protect the students’ educational relationship with the university, it denied them the protection of the Act. Id. However, the recent Columbia decision overruled this precedent, opening the protection of the Act to new classes of workers.
I. COLUMBIA UNIVERSITY
After a Regional Director at the National Labor Relations Board (NLRB) dismissed the petition filed by the Graduate workers of Columbia-GWC, UAW to represent student workers, the NLRB took the opportunity to revisit whether these students constituted statutory employees under the Act. Columbia, 2016 WL 4437684, at *1. The students who petitioned the NLRB for union recognition consisted broadly of “instructional officers” and “student research assistants,” which are positions filled by Ph.D. candidates, Master’s degree students, as well as undergraduate students. Id. at *15–17. Some of the responsibilities of these students include working in laboratories, grading papers, conducting entire courses, and performing clerical tasks. Id. Typically, these positions run between fifteen to twenty hours per week and can be funded either directly by the university or outside entities which direct any revenue remaining from the grant to the general operating expenses of the university. Id. at *16. While the NLRB closely examined the nature of each of these working arrangements in its decision, its rationale for recognizing them as statutory employees came from the Act’s broad definition of an employee. Id. at *5.
In Section 2(3) of the Act, Congress defined “employee” to mean “any employee” and did not specify any further except to exclude certain categories including independent contractors, supervisors, and agricultural laborers. 29 U.S.C. § 152(3) (2012). Because these students do not fall into any of the exempted categories, and the common law definition of “employee” is so broad, the NLRB ruled the student workers are covered by the Act. Columbia, 2016 WL 4437684, at *17. This ruling overruled the analysis in Brown University, which deemed that graduate assistants were not employees because the “underlying fundamental premise of the Act” was meant to cover economic and not educational relationships. Columbia, 2016 WL 4437684, at *14; Brown, 342 NLRB at 483. The Columbia decision extends the protections of the Act to the student workers at Columbia University and raises the possibility of the same for many other similarly-situated workers. Marc Edelman, NLRB Decision to Unionize Columbia Student Workers May Help College Athletes’ Union Movement, Forbes (Aug. 26, 2016, 2:52 PM), http://www.forbes.com/sites/marcedelman/2016/08/26/nlrb-decision-to-unionize-columbia-student-workers-may-help-college-athletes-union-movement/#63e8fde05a1a.
II. POTENTIAL IMPACT ON LABOR RELATIONS
Though more than 64,000 student workers at twenty-eight public universities are already organized in unions, the focus of the commentary on the Columbia decision is on how dramatically it will affect the institution of higher education. Colleen Flaherty, NLRB: Graduate Students at Private Universities May Unionize, Inside Higher Ed (Aug. 24, 2016), https://www.insidehighered.com/news/2016/08/24/nlrb-says-graduate-students-private-universities-may-unionize. Despite a recent adverse ruling by the NLRB, which is referenced in a footnote in Columbia, some see this ruling as an impetus for college athletes to unionize. Northwestern Univ., 362 NLRB No. 167 (2015); Columbia, 2016 WL 4437684, at *8 n.56; Edelman, supra. Others fear that the union seeking to represent the Columbia University student workers (the United Auto Workers) will turn the university into something that more closely resembles an assembly line than a place of learning. Preston Cooper, Opinion, The Faulty Logic of the NLRB College Student Unionization Ruling, Forbes (Aug. 25, 2016, 7:30 AM), http://www.forbes.com/sites/prestoncooper2/2016/08/25/the-faulty-logic-of-the-nlrb-college-student-unionization-ruling/#4504fe37d6bb. Regardless of these forecasts, Columbia will empower student workers at private universities to take full advantage of their rights as workers under the Act. See Flaherty, supra.
After spending over a decade following the holding of Brown University to deny student workers the protections of the Act, the NLRB overruled a narrow definition of “any employee” for the common law definition set forth by Congress in the Act. 29 U.S.C. § 152(3) (2012); Columbia, 2016 WL 4437684, at *14. This broader definition of an employee has sparked fear in universities about the encroachment that unionization will have on academic freedom while inspiring hope for the labor movement that it will organize a new generation of workers. See Flaherty, supra. At the least, it means that student workers will have their rights as workers protected by federal law.
*William Suggs is a second-year law student at the University of Baltimore School of Law and was a political operative and a union organizer prior to beginning his legal career. He now focuses in the field of labor law, representing workers and the unions that advance their interests.