Dive Brief:

• College graduate students at Columbia University and, it appears soon to be other private schools, have gotten the green light to form unions from the National Labor Relations Board, which ruled that grad students are employees, according to the Wall Street Journal.
• The Journal reports that Columbia graduate students had petitioned the NLRB to join a union, and the result could add thousands of new members to the struggling U.S. labor movement. According to the Bureau of Labor Statistics, for example, the number of wage and salary workers belonging to unions in 2015 was 14.8 million. In 1983, there were 17.7 million union workers.
• In its 3-1 decision announced yesterday, the NLRB said the National Labor Relations Act "contains no clear language prohibiting student assistants from its coverage. The majority found no compelling reason to exclude student assistants from the protections of the Act." The students deserved such protections when “they perform work, at the direction of the university, for which they are compensated,” the Journal reported the board’s majority said in its decision.

Dive Insight:

Employment law experts weighed in on the decision and how it may affect universities. Jerry Lutkus, a partner in Barnes & Thornburg’s Labor and Employment department, said that among other problems inherent in the NLRB decision, it seems to clash with its decision in the Northwestern football case where it declined for policy reasons to even address the issue of whether the student athletes were covered employees under the Act. 

"Here the Board found no problem getting to the employment question," he told HR Dive. "Yet Columbia raises the same fundamental question that existed in Northwestern when you are dealing with a proposed bargaining unit that is seasonal and often transient. When the proposed bargaining unit finally gets to collective bargaining, many of the adherents of unionization may be gone and the union could very well have lost its majority status by the very next school year."

Mark Neuberger, an attorney in Foley & Lardner’s Labor & Employment practice, adds that this case is yet another in a series of decisions handed down by the NLRB that pushes the envelope of the definition of what is a covered employee. "Today’s decision is a 360-degree turn in the law from prior NLRB decisions, which held that researchers, teaching assistants and graders at university are students and not employees," Neuberger told HR Dive. "The impact is that private colleges and universities will likely have to undergo drastic operational changes and could face increased costs.”