In a 2-to-1 decision, the National Labor Relations Board (NLRB or “the Board”) overturned longstanding precedent to hold that student teaching assistants can be classified as employees under the National Labor Relations Act (NLRA). With this decision, the Board continues its efforts to expand the reach of the NLRA to previously non-union employers. The decision marks a significant change in United States labor law and raises several questions as to how private colleges and universities should address union campaigns on their campuses.

The Board Overrules Existing Precedent

On August 23, 2016, the Board held that student teaching assistants at Columbia University could qualify as “employees” under the NLRA. The Board expressly held that “students who perform services at a university in connection with their studies are statutory employees” under the NLRA. In reaching this decision, the Board explicitly overruled existing precedent from Brown University.

In overruling Brown University, the Board noted that previous decisions focused too heavily on the fact that students had both employment and educational relationships with their college or university. The Board instead created a new, brightline rule that “the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship for purposes of the Act,” regardless of whether another, non-economic relationship exists between the parties. From that, the Board reasoned that the NLRA should cover student assistants “unless there are strong reasons not to do so.”

The Board found that allowing student employees to unionize promotes the goals of federal labor policy without compromising academic freedom or raising serious concerns under the First Amendment. In reaching that conclusion, the Board relied on anecdotal evidence to conclude that “no major disasters [] have arisen because of [graduate student] unions” in other settings and that “examples of collective bargaining in practice appear to demonstrate that economic and academic issues on campus can indeed be separated.” Moreover, the Board noted that there was no empirical evidence showing that collective bargaining would “harm mentoring relationships between faculty members and graduate students.”

The Board declined to address a number of concerns that Columbia University raised about how collective bargaining would play out, including whether student demands would interfere with academic decisions regarding class size, time, length, location, and exam structure. Instead of addressing these issues, the Board merely noted that “the Board’s demarcation of what is a mandatory subject of bargaining for student assistants, and what is not, would ultimately resolve these potential problems.” In conclusion, the Board succinctly held:

There is no compelling reason — in theory or in practice — to conclude that collective bargaining by student assistants cannot be viable or that it would seriously interfere with higher education.

The Board Finds That The Teaching Assistants Were Common-Law Employees Under the NLRA

Turning to the facts of the case, the Board held that the students at issue were common-law employees under the NLRA. According to the Board, Columbia University exercised sufficient control over the assistants. Columbia University, for example, directed and oversaw the assistants’ teaching activities, and the assistants were subject to corrective counseling or removal if they did not meet the university’s teaching standards.

The Board also highlighted the fact that the relationship between the parties was economic in nature. The Board, for example, noted that significant portions of the overall teaching duties conducted by universities are conducted through student assistants, and “the delegation of the task of instructing undergraduates, one of a university’s most important revenue-producing activities, certainly suggests that the student assistants’ relationship to the University has a salient economic character.” Moreover, the Board found that the assistants received compensation in the form of either stipends or financial aid, sufficient to trigger an employment relationship.

Concerns Raised by the Dissent

In a strongly worded dissent, NLRB member Miscimarra argued that the majority’s holding ignored the reality of the university setting and improperly elevated labor issues over countervailing non-employment factors. The dissent argued that the “paramount goal” for student assistants was to obtain a degree and that labor unrest could seriously undermine the educational experience.

The dissent raised a number of practical concerns — none of which the Board addressed. Among other things, the dissent questioned whether (and to what degree) the Board’s other precedents would play out in the university setting or how other federal laws (such as the Family Educational Rights and Privacy Act) would be impacted by the decision.

As noted by the dissent, several other questions remain:

  • Can colleges and universities keep investigation and witness statements confidential?
  • Can colleges and universities have rules that promote civility and/or prohibit profanity and abusive language?
  • Can colleges and universities discipline students for outrageous conduct directed at their supervising faculty members?
  • Can colleges and universities prohibit outrageous social media posts?

Implications for Educational Institutions

With this decision, colleges and universities now may be vulnerable to union organizing campaigns among their teaching assistants. Unionization of these students could significantly change their relationship with their college or university. Educational institutions should continue to monitor developments from the NLRB closely and seek appropriate legal guidance to assess risks.