Monthly Archive: October 2016

Oct 20

Peggy Browning Fund: 18th Annual National Law Students Workers’ Rights Conference

By Samantha Ojo.

I had the pleasure of attending the 18th Annual National Law Students Workers’ Rights Conference, sponsored by the Peggy Browning Fund. The Peggy Browning Fund is an organization like no other, providing forty law students with stipends and summer fellowships in labor-related positions across the nation. The conference brought law students from schools nationwide together at the Maritime Institute in Maryland for two jam-packed days of unique labor and workers’ rights themed programming and networking.

Conference events began on Friday evening with a networking reception and dinner, followed by a screening of the film Farewell Ferris Wheel, which shed light on workers’ rights issues surrounding the United States’s controversial H-2B guest worker visa program. Saturday’s programming began with a keynote address from Mark Gaston Pearce, Chairman of the National Labor Relations Board (“NLRB”). Mr. Pearce shared his work experiences that he gained during his transition from union-side work to leading the NLRB, advancing as a minority lawyer, and beginning his career in the NLRB’s Buffalo office. St. John’s Alumna and NLRB Staff Attorney, Amanda Jaret ‘13, moderated the panel.

Following the keynote address, I attended two breakout sessions: Introduction to Labor Law and Employee Benefits. The sessions offered great overviews to the fundamentals of Labor Law and Employee Retirement Income Securities Act (“ERISA”) Law.

After lunch, I attended my favorite panel of the weekend: Sports and Labor Law. The panel consisted of attorneys from three major sports unions, the NBPA, NFLPA, and MLBPA, and delved into the unions’ history and development, current initiatives, and stances regarding legal issues. The conference concluded with a panel discussion on organizing workers in the gig economy, which highlighted the unique nature of organizing employees or independent contractors of companies like Uber, Lyft, and Airbnb.

As a first-year law student, it can be difficult to leave the classroom and see legal work in action, but the Peggy Browning Conference both exposed me to new and fascinating legal issues and provided me insight into my desired career with unparalleled access to distinguished individuals at the top of their field. I hope to be able to formally become involved with the Peggy Browning Fund throughout my time in law school, and I strongly suggest that students with an interest in workers’ rights or Labor and Employment Law should research the fellowship and aim to attend the conference next fall.

Oct 12

Columbia University: Board Overrules Brown University and Classifies Student Assistants as Employees

By Divya Acharya.

Section 2(3) of the National Labor Relations Act (the “Act”) broadly defines an employee as “any employee,” subject to specified exceptions. Additionally, the Supreme Court has noted that the definition encompasses “any person who works for another in return for financial or other compensation.” Tasked with interpreting the wide-ranging breadth of this definition, the National Labor Relations Board (the “Board”) has rendered pendular decisions in cases such as New York University (2000), Brown University (2004), and, most recently, Columbia University (2016).

The Board issued a 3-1 decision in Columbia University, holding that student assistants working at private and nonprofit universities classify as employees pursuant to § 2(3) of the Act. In Columbia University, the Board revisited its earlier decisions in Brown University and New York University, which led to overturning the former and reinstating the latter.

In Columbia University, the majority reversed Brown University, which held that student assistants were primarily students and, therefore, had an educational, rather than an economic, relationship with the school. The Board found that it “deprived an entire category of workers of the protections of the Act without a convincing justification.” In Columbia University, we observe the Board embracing the rationale it applied in New York University, where it found that graduate assistants were employees pursuant to both § 2(3) of the Act and the common law agency doctrine.

Here, the Board did not find a compelling reason to exclude student assistants from the protections afforded by the Act. It is within the Board’s authority to treat student assistants as statutory employees when they are directed by the university to perform work for which they are compensated. In this case, the common law agency doctrine reflects a master-servant relationship between the student assistants and Columbia University: the university-employer has the right to control the student assistant-employee’s work, and the work is performed in exchange for compensation. Thus, since the standards for an employer-employee relationship are met under the common law test, it is sufficient to establish that the student assistant is a § 2(3) employee for all statutory purposes.

The Board reasoned that extending student assistants the right to engage in collective bargaining would not only preserve, but also advance the policies of the Act: to encourage collective bargaining and to protect a worker’s rights to freedom of association, self-organization, and designation of representatives of their own choosing.

It is important to note that when the New York University and Brown University decisions were rendered, the Board’s composition changed from that of a democratic majority to a republican majority. The Columbia University decision is the product of today’s democratic majority Board. Given that its changing members directly influence the Board’s decisions concerning this issue, it will be interesting to observe whether the looming presidential election will keep the pendulum swinging.