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New NLRB Ruling Allows Student Workers to Unionize

Have private universities transformed into workplace universities for student teaching assistants? According to a recent National Labor Relations Board (NLRB) ruling, the answer is “yes.” 

In a 3-1 decision, the NLRB ruled in Columbia University, 364 NLRB No. 90 (Aug. 23, 2016) that under federal law, students performing research and teaching roles are employees and, therefore, are permitted to join labor unions. This ruling overturned a 2004 NLRB decision, which held that students who worked as part of a tuition payment plan were not bona fide employees. Since the ruling was announced, some of the country’s most prominent private colleges and universities have experienced increased efforts by academic assistants to unionize. Among the most popular grievance expressed by these students is unfair pay. 

Despite the predictable excitement among graduate students and private universities across the country, the ruling raises logistical questions that may prove relevant should these student unions begin to take shape following the NLRB’s ruling. One question, for example, is whether student unions will be able to build and sustain bargaining power, given the fact that most graduate teaching positions are temporary. Other legitimate questions arise as to whether members of these unions would be willing to strike if striking could result in the students losing their academic credit.

In any event, unless the NLRB decision is reversed by an appeals court, private colleges and universities are beginning to anticipate that the NLRB may be closer to recognizing bargaining units for not only college students, but also college athletes. For now, however, academic assistants at private universities, unlike their counter-parts at public universities, are considered employees under federal law and are, therefore, permitted to unionize. Student teaching assistants at public universities are not covered by the National Labor Relations Act (NLRA), but by state labor laws. 

In the wake of this decision, private university administrators should begin to carefully consider their positions on collective bargaining in the event that student unions are certified on their respective campuses. Because the NLRB has held that academic assistants may be both students and employees, it has also determined that a private university may be both a student’s educator and its employer. As such, after class is over, a graduate assistant’s wages, hours, and benefits will be subject to collective bargaining. 

This NLRB decision may significantly affect small businesses that employ post-secondary graduates, who might otherwise choose to be employed by colleges as graduate teaching assistants, but for low wages or other employment grievances. Now that these student teaching assistants will be permitted to organize in unions, they may choose to be employed on campus instead, which could adversely affect the small business workforce in the cities and towns where these private universities are located.  

While an appeal of the decision is highly likely, private colleges, as well as small businesses, need to prepare for this new standard immediately. 

Gabe McGaha is an associate attorney at Fisher Phillips. Have questions about a legal or labor and employment matter and how it may affect your business? Contact Fisher Phillips at

Posted: 9/8/2016 9:21:33 AM | with 0 comments
Filed under: Business, Fisher, Labor, Law, Phillips, Small, Student, Unionize, Workers

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