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.