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Are Graduate Students Employees? The Latest NLRB Case

By Christopher Coble, Esq. on October 30, 2015 | Last updated on March 21, 2019

Most public sector employees have the right to form a union, and to collectively bargain for the key terms and conditions of employment. But before any of that, you need a ruling from the National Labor Relations Board declaring that you are, in fact, an employee. And this can get a little tricky.

Graduate students, who are often expected to perform similar work as tenured professors but without the same pay and benefits, have found it difficult to unionize. This is mostly because they have found it difficult to be recognized as employees. But a new case in front of the NLRB may change that.

The Old Public Versus Private Distinction

First off, the labor rights of graduate students will depend on whether they are at a public or private university. State law generally governs the unionization rights of graduate students at public universities, and while some states permit collective bargaining, others do not.

The Old Employee Versus Student Distinction

Part-time faculty, graduate assistants and student teachers have faced an uphill battle in unionization. Despite colleges and universities becoming more dependent on part-time faculty, graduate assistants, and other non tenure-track professors to save money, they often keep them as part-time workers who are paid far less and denied benefits.

The New Litigation

The current case in front of the NLRB involves unionization of graduate students at private universities, and is an extension of fifteen years of legal twists and turns. In 2000, the NLRB said graduate student teaching assistants at NYU were employees and thus could form a union and collectively bargain. They reversed that ruling in 2004.

Then in 2011 they said the 2004 ruling still stands, but questioned its logic, and allowed NYU grad students to appeal the decision in 2012. That appeal never went through due to a compromise between NYU and its grad students, but a new case involving grad students at the New School in New York has revived the issue, and the NLRB has agreed to revisit its earlier rulings.

A ruling in the New School case will be huge for graduate students looking to collectively bargain for better pay and benefits, and we'll be keeping an eye on the NLRB in the coming weeks.

As noted above, some employee rights are dictated by state law, so they can vary depending on where you live. If you're unsure about your employee status, ability to unionize, or collective bargaining rights, you should consult an experienced employment attorney near you.

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