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NLRB Rules That Graduate Students Are Employees

Earlier today, the National Labor Relations Board (“the Board”) issued its long awaited decision in Columbia University. Not surprisingly, the Board, in a 3-1 decision, overturned 12 years of precedent by ruling that “student assistants” (including assistants engaged in research funded by external grants) who have a “common law” employment relationship with their university are employees as defined by the National Labor Relations Act (the “Act”), and therefore are entitled to the protections afforded to employees under the Act such as engaging in the right to unionize. 

The Board has equivocated on the issue of whether graduate students are employees as defined by the Act. In 2000, the Board in its New York University decision determined that graduate students were employees under the Act. Four years later in Brown University, the Board overturned New York University and held that graduate students were not employees.  With today’s ruling, the Board has yet again changed course on this issue.

In Columbia University, the Board held that student assistants could be employees as defined by the Act, while also being students. Specifically, the Board held that “the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship for purposes of the Act.”

The Board’s decision in Columbia University and its very broad definition of what students can be classified as employees could have a significant impact on private universities across the country.

© 2019 Proskauer Rose LLP.

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About this Author

Paul Salvatore, Proskauer, New York, Real Estate Lawyer, Construction
Partner

Paul Salvatore is a member of Proskauer’s Executive Committee and former co-chair of its global Labor & Employment Law Department, named by The American Lawyer as one of the top U.S. practices and recipient of the Chambers USA 2012 Award for Excellence. He is widely recognized as a leading U.S. labor and employment lawyer in such publications as Chambers (Band 1), US Legal 500 (Leading Lawyer) and Superlawyers. In 2010, The National Law Journal selected Paul as one of "The Decade's Most Influential Lawyers" – one of only...

212-969-3022
Edward A. Brill, Labor & Employment Attorney, Proskauer Law Firm
Partner

Edward A. Brill is a partner in the Labor & Employment Law Department.

He is the former co-head of the firm’s Appellate Practice Group, which was honored in 2011 by Law 360 as one of the five nationwide “Appellate Groups of the Year,” and by the National Law Journal with a spot on its “Appellate Hot List.”

Ed devotes a significant amount of time to representing educational institutions, including Columbia University, New York University, Yale University and Polytechnic Institute. He has served as lead counsel in numerous employee representation and unfair labor practice cases before the National Labor Relations Board, and employment litigation involving faculty, senior administrators and staff. He has represented each of these institutions in disputes involving union efforts to organize graduate student teaching and research assistants.

Ed also represents Quinnipiac University in a widely publicized Title IX class action alleging that the university’s athletic program fails to comply with various requirements of Title IX. Among other issues, the case involves the issue of whether competitive cheer is properly recognized as a varsity sport for purpose of Title IX.

212-969-3015
Steven Porzio, Proskauer, labor attorney, employment lawyer,
Associate

Steven Porzio is an associate in the Labor & Employment Law Department and a member of both the Labor-Management Relations Group and Employment Law Counseling & Training Group. Steve assists both unionized and union-free clients with a full-range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board. 

Steve has experience conducting vulnerability assessments and...

212-969-3079