The National Labor Relations Board (NLRB), in a decision on August 23, 2016, regarding Columbia University, concluded that, for the purposes of collective bargaining, the following positions should be deemed employees:
 

  • Graduate and undergraduate teaching assistants
  • Graduate research assistants
  • Graduate fellows assistants
  • Work-study students
  • Instructional officers

This ruling overturns Brown University, 342 NLRB 483 (2004), a sharply-divided decision, which itself overruled an earlier decision, New York University, 332 NLRB 1205 (2000) (NYU). The Brown case stated that “graduate assistants cannot be statutory employees because they are primarily students and have a primarily educational, not economic, relationship with their university.”

The recent NLRB decision directly contradicts the position of the Department of Labor’s Wage-Hour Division (WHD). In 1994, the Department of Labor issued guidance in its WHD Opinion Letter 1994 WL 1004845 (June 28, 1994) in response to a request for an opinion as to whether an employment relationship exists under the Fair Labor Standards Act (FLSA) “between graduate students and a medical institution where they are engaged as research assistants while working full time toward fulfilling the requirements of a Ph.D. degree.” The Wage-Hour Administrator outlined criteria that must be met for the exclusion, stating:

It is our position that in cases where graduate students in a graduate school are engaged in research in the course of obtaining advanced degrees and where the research is performed under the supervision of a member of the faculty in a research environment provided by the institution under a grant or contract, we will not assert an employee-employer relationship exists between the students and the school, or between the student and the grantor or contracting agency, even though the student receives a stipend for his or her services under the grant or contract.

On May 18, 2016, the Department of Labor issued “Guidance for Higher Education Institutions on Paying Overtime under the Fair Labor Standards Act,” reinforcing its earlier position. While the Department of Labor may not be bound by the decision of the NLRB, it seems likely that there will be an official response to the NLRB ruling regarding Wage-Hour issues.

What does that mean for federal contractor academic institutions? The American Association for Access, Equity, and Diversity (AAAED) has held several meetings with OFCCP to request clarification on several issues related to academic institutions, including whether to include graduate students in Affirmative Action Plans (AAP). OFCCP’s response came in the form of a Frequently Asked Question (FAQ), instructing contractors to apply the Darden Factors, from a Supreme Court case which articulated the criteria for establishing whether someone is an employee or a contractor (Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318). While the factors are helpful in determining whether an adjunct professor should be included in a federal contractor’s Affirmative Action Plan, they have minimal value in establishing the employee status of students.

In early 2015, AAAED met with OFCCP officials, asking them for further clarification on the employee status of graduate students. OFCCP asked AAAED to provide a draft FAQ to address the issue. In response, AAAED applied the Darden factors and submitted the following to OFCCP:

Should students be included in an academic institution’s Affirmative Action Plan (AAP)?

No. Students are not considered employees, and therefore should not be included in the AAP.
 

  1. Eligibility. For the most part, positions filled by full-time students are restricted to student applicants.
  2. Duration. Student positions may cease when the student leaves the position, or is no longer enrolled in school. Student work assignments are short term, flexible, and contingent upon the student’s enrollment in the academic institution. The duration of the relationship is limited and based on student’s time at the university and other educational constraints.
  3. Compensation. Students typically do not benefit from the same compensation, fringe benefits, rights, and responsibilities as employees at the academic institution.
  4. Purpose. Positions are typically created for students to further their education and/or as part of a financial aid package. The primary focus of the students’ employment is to provide experiential learning opportunities to advance their classroom learning. Opportunities benefit the student and not as much to further the institutional business.
  5. Work schedule. Students typically have great flexibility with regard to when, where, and how the tasks are performed.

It seems likely that OFCCP will follow the NLRB’s interpretation of the employee status of graduate students, as they have historically broadened the interpretation of employee to include a larger class of workers as employees. Likewise, the WHD may be working to revise its definition to include graduate students as employees before the end of the year, when we will experience a change in our national leadership.

In light of the recent NLRB decision, and in the absence of any current guidance from OFCCP and the Department of Labor, be prepared to begin (or continue) including graduate students in Affirmative Action Plans with the next plan year.