Written by Annie Wilt and Antonia Diener
The National Labor Relations Board recently proposed a new rule which would categorically exclude “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” from being considered employees for the purposes of the National Labor Relations Act. This rule, which would strip student workers of the protections afforded by the National Labor Relations Act, comes amidst a wave of a student worker activism and unionizing efforts nationwide following a decades-long series of flip-flopping decisions from the Board about the status of student workers. If adopted, the rule has serious implications for the rights of student workers and their ability to advocate for good workplace conditions and living standards.
How did we get here, and what is at stake?
In 1935, Congress passed the National Labor Relations Act (NLRA or “Act”) in order to “to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.” The Act created the National Labor Relations Board (NLRB or “Board”), which functions as an “independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.” The Board consists of five members who decide cases in administrative proceedings. Members are appointed by the President, with the consent of the Senate, to five year terms. Due to this appointment power, the President is able to influence the Board’s decisions and policy determinations. As politics have become more polarized in recent years, the NLRB has been referred to as a “seesaw” whose priorities and policy determinations change from one administration to another.
The “seesaw” of the Board in the context of higher education
One major area of ‘seesaw’ action is the Board’s treatment over time of the right of graduate students at private universities to unionize. Under Section 2(3) of the Act, the term “employee” includes “any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise…” The Act at no point mentions student workers and does not explicitly determine whether or not they are employees. In a 1970 decision concerning Cornell University, the Board asserted jurisdiction over “nonprofit educational institutions whose operations affect commerce.” Four years later, in Adelphi University, the Board found that graduate students who worked as teaching and researching assistants are “primarily students” and should be excluded from a bargaining unit composed of faculty members. In The Leland Stanford Junior University, the Board explicitly held that graduate student research assistants are not employees for the purposes of the Act. Although the Leland Stanford principle was the general rule for some time, the Board reversed itself in 2000 in New York University, finding that graduate assistants are employees within the meaning of Section 2(3) of the Act. Over the next sixteen years, the Board reversed itself twice: first in Brown University and later in Columbia University. In the Columbia University decision, the Board explicitly overruled the Leland Stanford principle and expanded Section 2(3) of the Act to cover “both externally-funded graduate research assistants and undergraduate student assistants.” The Board, made clear in the Columbia University decision that statutory coverage is not foreclosed by the existence of some other relationship between employer and employee (the educational relationship, in this case). Additionally, the Board found that the unequivocal policy of the Act, is to “encourag[e] the practice and procedure of collective bargaining” and to “protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.” Given this policy, coupled with the very broad statutory definitions of both “employee” and “employer,” the Board found it appropriate to extend statutory coverage to graduate student workers, unless there were strong reasons not to do so. After failing to find these strong reasons, the Board asserted that the academic world was not exempt from the economic realm of labor law.
Continuing the seesaw action, the Board published a Notice of Proposed Rulemaking (NPRM) in the Federal Register in September 2019 proposing to exempt “undergraduate and graduate students who perform services for some form of financial compensation at a private college or university in connection with their studies from coverage as employees under Section 2(3) of the Act” from the Board’s jurisdiction. The Board’s current position is that “the relationship [both] undergraduate and graduate students have with their school is predominately educational, rather than economic,” and therefore students should not be classified as employees, even though the statutory definition of employee is sufficiently broad to cover this class of workers. The Board asserts that the following facts support their current interpretation of the statute: First, that many graduate or research assistantships are prerequisites for graduation; second, that students spend a limited amount of time on these research duties because their principal commitment is to academic studies and, thus, funds received for research duties are better viewed as financial aid than as consideration for work; third, the faculty’s role in advancing student education through research assistantships is unlike a more traditional antagonist employer/employee relationship that is rooted in self-interest, making collective bargaining inappropriate, and; finally, that the Board should be compliant with its long-standing rule that they will not assert jurisdiction over relationships that are “primarily educational.”
Critiquing the proposed rule
The Board’s purported rationales for the change in the rule are, at best, weak and, at worst, illogical. As the opinion of the dissenting board member made clear in the Notice of Proposed Rulemaking, the majority of the Board in favor of this rule “expresses concern that, in addition to harming the education of the graduate employees, allowing [them] to bargain will affect universities’ academic prerogatives, such as directing the content, methods, and standards of education. These assertions do not stand up to scrutiny.” The dissenting board member references the positive impacts collective bargaining contracts have had at five of the educational institutions that have adopted them, including increased pay, guaranteed funding for necessary teaching and research materials, and improved access to mental health care. The dissenting board member also accuses the majority promulgating the rule of making factual assertions about the possible consequences of unionizing without any evidence to support these assertions. She argues that the Board is making a sweeping claim based on their own ideas and intuitions, rather than based on any empirical evidence. The fact that the only empirical study done on the effects of collective bargaining in an academic setting found that collective bargaining does not undermine the academic relationships makes this claim even more fallacious and dangerous.
Not only does it seem that the proposed rule fails to be grounded in any empirical facts, the practical effects of the rule on student workers would be profound. It influences not only student workers’ rights to unionize and fight back against unfair labor practices, but also allows students to make significant gains in terms of improving workplace conditions. Without employee status, graduate students will lose the protections provided for in the Act, and therefore the ability to effectively organize without fear of retribution. This loss of protections can have especially powerful implications for international students whose visa status could be threatened by adverse administrative action. Under the Act, employees cannot be fired for organizing; however, if students lose employee status – and the protections of the Act as a result – there are risks of truly negative consequences, the extent of which are as of yet unknown. Although the extent of the ramifications are unclear, it is quite likely that without the protections of the Act, students may be more vulnerable to institutional disciplinary action, which can affect their standing with potential employers. Further, graduate students who must stand before a licensing board following their education may face issues in passing character and fitness portions of such licensing process. For example, since many state bar associations are looking for lawyers with “good moral character,” each state may define such character as it sees fit and, thus, disciplinary action taken against a student during their academic career may raise flags as to the character of that student.
Additionally, as the Board in its Columbia University decision noted, student employees fit squarely within the statutory definition of “employee” under the National Labor Relations Act. In removing legal employee status, the Board is effectively excluding an entire class of employees from the Act. The Board’s current proposal rests on the premise that if Congress intended “a result so drastic” they would have said so in their statutory scheme. Enumerating every possible employer/employee relationship the Act is expected to cover is a dangerous and impossible task. T Yet, under the Board’s reading, since Congress specified no specific employer/employee relationships to be covered, we should exclude them all until Congress specifically speaks on all of them. This cannot possibly mean what the Board says it means. Allowing administrative agencies to interpret statutes in this manner opens the floodgates for permitting agencies to interpret all kinds of statutes in ways that are inconsistent with the statutory scheme and that exclude marginalized or otherwise more diffuse groups.
Without satisfactory alternatives, graduate workers may resort to using labor disruptions, like showdowns and strikes to secure the rights no longer promised to them by law. To a certain degree, this is already happening at universities like Columbia and the University of Chicago. The Harvard Graduate Student Union has recently voted to authorize a strike. This proposed rule has thus undermined the entire statutory scheme, at least within academic institutions, since The National Labor Relations Act was put in place to prevent this kind of labor conflict. Interestingly, as colleges are increasingly deploying rhetoric to describe the kinds of environments they envision on their campuses for students, such as diverse, inclusive, equitable, and sustainable, their actions in fighting to recognize graduate unions are, at best, in tension with these values and, at worst, blatantly hypocritical.
The path forward
Formal recognition by the Board is not the only way student workers can attempt to collectively bargain with their universities. Students could also try to get voluntary recognition from their universities, as has happened at Georgetown University. However, schools are often reticent to voluntarily recognize student unions, as exemplified by the situation currently facing student workers at Boston College. Some experts have also noted student workers at private institutions could also try to assert the right to collective bargaining under “state constitutions and statutes that cover private-sector institutions.” However, such alternatives should not be necessary. The Board’s proposed rule is both illogical and likely to cause needless harm to student workers. Continuing to classify students as workers will not, as proponents of the rule argue, severely damage the collegial and educational nature of the university environment. Rather, it will merely endow student workers, whose academic products are essential to the smooth operation of the universities, with the same rights afforded employees in other contexts. The Board should resist the temptation to seesaw and, instead, decisively continue to recognize students as employees – with all the rights and protections that status entails.