United States: NLRB: Graduate, Undergraduate Teaching Assistants Are Employees Under NLRA

David J. Santeusanio is a Partner in our Boston office.


  • The National Labor Relations Board (NLRB) has concluded that graduate and undergraduate teaching assistants at Columbia University are employees under the National Labor Relations Act (NLRA).
  • The decision means that student assistants at private universities may unionize and assert other protections under the NLRA, raising new challenges for colleges.
  • The NLRB overruled its 2004 decision in Brown University, in which it decided that graduate students at Brown were not employees because they "are primarily students and have a primarily educational, not economic, relationship with their university."

The National Labor Relations Board (NLRB or the Board) on Aug. 23, 2016, issued a 3-to-1 decision concluding that graduate and undergraduate teaching assistants at Columbia University are employees under the National Labor Relations Act (NLRA or the Act). The NLRB overruled its 2004 decision in Brown University, in which the Board decided that graduate students at Brown were not employees because they "are primarily students and have a primarily educational, not economic, relationship with their university."

As employees under the Act, student assistants at private universities may unionize and assert other protections under the NLRA. For more than 45 years, the Board has applied the Act to employees in private universities, and universities have regularly faced organizing efforts by faculty, adjuncts, and other groups of employees on campus. The Board's decision now expands potential unionization to graduate students, raising new challenges for colleges.

Board Overrules Brown and Concludes Student Assistants Are Employees Under the Act

This case arose from a regional director's November 2015 decision concluding that graduate students at Columbia were not subject to the Act. The regional director followed the Board's 2004 decision in Brown. The Graduate Workers of Columbia-GWC, UAW – the union organizing the graduate students at Columbia – appealed to the Board.

The NLRB began its analysis with the text of the Act and the definition of "employee." Section 2(3) of the Act states that "[t]he term 'employee' shall include any employee," subject to certain exceptions. None of the exceptions in the Act address students, graduate students or university employees generally. The Board has applied a common law of agency test to determine whether a worker is an employee under the Act: whether employer has a right to control the individual's work and whether the work is performed in exchange for consideration.

The NLRB concluded that the Brown Board did not appropriately consider the text of Section 2(3). According to the NLRB, the Brown Board erred when it "frame[d] the issue of statutory coverage not in terms of the existence of an employment relationship, but rather on whether some other relationship between the employee and the employer is the primary one – a standard neither derived from the statutory text of Section 2(3) nor from the fundamental policy of the Act." The NLRB rejected the Brown Board's focus on whether student assistants have a primarily educational or economic relationship with their college. According to the NLRB, a student assistant may have both an educational and economic relationship with the college.

After concluding that the text of the Act supported the conclusion that student assistants are covered under the Act, the NLRB assessed whether there were any compelling statutory or policy considerations that require an exception. The Board addressed three considerations: the goals of federal labor policy; whether applying the Act to student assistants would infringe on First Amendment freedoms; and whether experiences of collective bargaining in other university settings support applying the Act to student assistants.

The NLRB found that none of these three considerations supported excluding student assistants from the Act. First, the Board concluded that including student assistants as employees promoted the goals of federal labor policy, including the encouraging collective bargaining and protecting workers' freedom to choose for or against collective bargaining. Next, the Board found that applying the Act to student assistants would not infringe on First Amendment academic freedom – including the right to speak freely in the classroom and other academic decisions – because applying the Act to student assistants would not address the content of speech. Finally, the Board reviewed the experiences of private universities bargaining with faculty as well as those of public universities that collectively bargain with student assistants. (Public universities are subject to state labor law, not the Act.) In the Board's view, the evidence established that universities can and do navigate the "delicate topics near the intersection of the university's dual role as educator and employer," and that collective bargaining does not harm the educational process.

In sum, the NLRB concluded that "there is no compelling reason – in theory or in practice – to conclude that collective bargaining by student assistants cannot be viable or that it would seriously interfere with higher education." The Board explained that "affording student assistants the right to engage in collective bargaining will further policies of the Act, without engendering any cognizable, countervailing harm to private higher education."

Student Assistants at Columbia

The NLRB then reviewed the specific facts of the graduate and undergraduate teaching assistants and graduate research assistants at Columbia; applied the common law test for employees; and concluded that all groups of students assistants were employees.

As for the graduate and undergraduate teaching assistants (including teaching fellows, preceptors, and readers/graders), the Board concluded that Columbia directs and oversees their teaching activities. The Board further concluded that they receive compensation in the form of financial awards and stipends. As a result, the Board concluded that teaching assistants met the common law test for employment.

As for student research assistants, the Board concluded that they conduct research to advance the assistants' doctoral theses and to meet research goals of grants to Columbia. The research assistants work under the direction of their departments to ensure that grant specifications are met. The research assistants receive financial aid through the external research grants. Given this relationship, the Board concluded that student research assistants are employees. In so ruling, the NLRB expressly overruled its 1974 decision in Leland Stanford Junior University, in which the Board concluded that externally funded university research assistants were not statutory employees under the Act.

The NLRB concluded that the petitioned-for unit was appropriate for collective bargaining because they shared a sufficient community of interests. The Board rejected Columbia's argument that the differences in pay, benefits, duties, and remunerative interests showed an absence of community of interest. The Board further concluded that none of the petitioned-for classifications contain "temporary employees" who must be excluded from the unit.

Board Member Philip Miscimarra dissented. As an initial matter, he distinguished graduate work from regular employment on the grounds that full-time enrollment in a university is a significant financial investment, with years of debt and no guarantee of graduation. He explained that "for students enrolled in a college or university, their instruction-related positions do not turn the academic institution they attend into something that can fairly be characterized as a 'workplace.'"

He highlighted that potential problems exists when the protections of the Act are extended to graduate students, including that fact that a variety of economic weapons were available to both student assistants and universities. These economic weapons include strikes by student assistants, lockouts and potential loss of academic credit. The use of these economic weapons, he noted, could have "devastating consequences" for students.

Miscimarra further warned of the potential results of the Board's decision. He stated, "[p]arents take heed: if you send your teenage sons and daughters to college, the Board's majority decision today will affect their 'college experience' in the following ways." He then listed a variety of practical concerns related to recent controversial Board decisions that invalidated workplace rules promoting civility; invalidated rules barring profanity and abuse; and protected employees who engaged in "outrageous" conduct when confronting supervisors and who direct expletives to a supervisors on social media postings. In short, according to Miscimarra, the Board should have followed Brown and concluded that student assistants are not employees under the Act.

The case was remanded to the NLRB regional director for further proceedings to address certain voter eligibility issues.


By overruling Brown and Leland Stanford, the Board opens the door to unionization efforts by student assistants. Colleges should evaluate their positions on the potential unionization of student assistants and other groups of employees on campus; develop comprehensive approaches to addressing union and other employee-relations matters; and ensure that administrators understand a college's rights and responsibilities under the NLRA. This is particularly important given the NLRB's recent expansion of employee rights, including the Board's many pro-employee rulings on what it means to engage in protected concerted activity in the workplace and the Board's increased scrutiny of workplace policies. In short, this latest pro-labor decision from the Board underscores the need for colleges to focus on the various labor issues on campuses, including the new potential for student assistant organizing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.