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Democratic Bill Seeks to Classify Graduate Student Workers as Employees under NLRA

The “Respect Graduate Student Workers Act,” introduced by Representative Mark Pocan (D-Wis.), aims to classify graduate student workers as employees and ensure them “full labor protections” under the National Labor Relations Act (NLRA).

The bill also seeks to prohibit the National Labor Relations Board (NLRB) from finalizing its proposed rule, issued on September 23, 2019, that students performing services at a private college or university that are related to their studies are not statutory employees under the NLRA. (For more details on the proposed rule, see our article, NLRB Proposes Rule to Exclude Student Workers at Private Colleges, Universities from NLRA Coverage.)

The NLRB’s proposed rule would overturn the Board’s decision in Columbia University, 364 NLRB No. 90 (2016), which is the current law on whether student workers are employees under the NLRA. In that decision, the Board explained that there was no language in the NLRA prohibiting the Board from treating student assistants as statutory employees “where they perform work, at the direction of the university, for which they are compensated.” The Board also stated, “[A] graduate student may be both a student and an employee; a university may be both the student’s educator and employer.”

The Columbia decision did not create a bright-line rule requiring the NLRB to find student workers to be employees covered by the NLRA whenever they are determined to be common-law employees. The NLRB had ruled only that it may find students are statutory employees. However, the Board’s proposed rule definitively provides:

Students who perform any services, including, but not limited to, teaching or research assistance, at a private college or university in connection with their undergraduate or graduate studies are not employees within the meaning of Section 2(3) of the Act.

(Emphasis added.)

The Respect Graduate Student Workers Act’s approach also is definitive. The bill provides: graduate student workers at private colleges and universities are employees and should be granted every right and responsibility conferred to them under the NLRA. It also provides that graduate student workers should not be excluded from the definition of “employee” on the basis of an educational relationship with an employer.

On the same day Representative Pocan introduced his bill, thousands of graduate student workers gathered in Washington D.C., Boston, and Chicago to protest the Board’s proposed rule and deliver almost 30,000 comments to the Board opposing it. Colleges and universities may continue to experience increased organizing activity and pressure tactics such as student worker strikes and protests.

Jackson Lewis P.C. © 2020

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

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Michael Bertoncini, Jackson Lewis, labor relations attorney, employment litigation lawyer, NLRB proceedings counsel, arbitration law
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Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, and employment law counseling and litigation.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
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Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

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Doriyon C. Glass Labor & Employment Lawyer Jackson Lewis Law Firm
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Doriyon C. Glass is an Associate in the Cleveland, Ohio, office of Jackson Lewis P.C. Her practice focuses on representing employers in a variety of labor and employment-related matters, including employment discrimination, retaliation, and harassment, with a particular focus in collegiate and professional sports. 

While attending law school, Ms. Glass was a research assistant for the American Law Institute, assisting on the Restatement (Third) of Torts. She was a member of the Editorial Staff for the Wake Forest Journal of Business &...

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