Nemeth Law looks at new NLRB decision that student assistants at private universities are employees and can unionize

Kellen Myers, an attorney with Detroit-based management side labor and employment law firm Nemeth Law, P.C., said that Tuesday’s historic decision by the National Labor Relations Board (NLRB) ruling that student assistants at private colleges and universities are statutory employees covered by the National Labor Relations Act (NLRA) will likely have ramifications throughout the country.

“The NLRB’s decision allows students who work as teaching assistants, research assistants and fellows at private colleges and universities at the graduate and undergraduate level to unionize, in essence declaring them to be employees first and students second,” Myers said.

The NLRB decision stems from a union election petition filed by the Graduate Workers of Columbia-GWC, UAW, which was looking to represent both graduate and undergraduate teaching assistants, as well as graduate research assistants, at Columbia University in New York.
In Tuesday’s 3-1 decision, the Board overruled its 2004 decision in Brown University, which held that graduate student assistants who performed services at a university in connection with their studies were not statutory employees under the Act.

The Brown University Board had emphasized the primarily educational relationship between graduate students and their institutions in reasoning that the NLRA was only designed to cover relationships that are economic in nature. The current Board disagreed with this rationale and held that Brown University failed to interpret the NLRA in light of its policies and, in doing so, had “deprived an entire category of workers of the protections of the Act without a convincing justification.”

As a result of the ruling, student assistants at private educational institutions are now protected by the NLRA and have the right to not only unionize but to discuss wages and other terms and conditions of employment or engage in other lawfully protected activity such as strikes. What lies ahead is that student assistants and their respective institutions can now bring to bear the full arsenal of economic weapons available through collective bargaining that are often used in labor disputes, including strikes, lockouts and replacement workers, among other things.

Michigan has approximately 35 private not-for-profit educational institutions (not including the handful of private for-profit institutions) which could be affected by this decision, according to statistics Myers obtained from the Michigan’s Student Financial Services Bureau.

“Although it remains to be seen whether a union election petition at Columbia will be successful, this decision will likely have a major impact at private colleges and universities both in Michigan and across the country,” Myers said. “While the NLRB’s decision is significant, it is consistent with the current nature of the agency, which is aggressively pursuing a more expansive interpretation of the National Labor Relations Act.”

About Nemeth Law, P.C.
Nemeth Law specializes in arbitration, mediation, workplace investigations, employment litigation, traditional labor law and management consultation/training for private and public sector employers. It is the largest woman-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.

This week’s U.S. Supreme Court decision on supervisors has far reaching implications for employers

“Act and educate, rather than celebrate”

Detroit, Michigan – June 28, 2013 –This week’s U.S. Supreme Court decision defining supervisors under Title VII as only those with the ability to take tangible actions against employees (Vance v. Ball State University) will have far ranging implications for employers, according to Patricia Nemeth, an attorney with Detroit-based employment law firm Nemeth Burwell, P.C. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.

“Employers will certainly be in a position to get many discrimination cases dismissed following this decision, but the new and narrowly defined definition of a supervisor requires employers to act and educate, rather than celebrate,” said Nemeth.

The first step employers need to take is to revisit job descriptions to verify they match actual job duties. Employees who have been acting as supervisors without the authority to hire, fire or take tangible employment actions with respect to other employees are not considered supervisors under the new ruling and should not be treated as such. Team leaders, for example, are popular positions in a variety of industries, but may have no true supervisory authority under the new Title VII definition. Employers need to be careful about how they treat team leaders, how they refer to them and how they train them. Another consideration is how employers classify employees as supervisory or non-supervisory for purposes of the National Labor Relations Act.

“The Supreme Court ruling impacted the definition of a supervisor under Title VII, not the National Labor Relations Act (NLRA), which covers private employers. Under the NLRA, supervisors cannot be unionized and are not entitled to the rights afforded to non-supervisors. Because the NLRA narrowly defines supervisors, more employees can be unionized,” said Nemeth. “From the perspective of an employer facing a union organizing drive, it is important to maximize the number of employees identified as supervisors so they cannot be unionized.

This is different from an employer’s goal in the Title VII context, where an employer may be trying to limit supervisory employees to limit potential automatic liability. Therefore, employers need to identify what their ultimate goals are and balance the interests involved when reviewing and redrafting job descriptions.”

Nemeth also noted the Court’s ruling did not automatically change the broad definition of a supervisor found in EEOC guidelines.

“It will be interesting to see how the EEOC responds to this ruling and also see if Congressional action is taken to overturn the Vance v. Ball State University decision,” said Nemeth.

Justice Ginsburg noted in her dissent that Congress may have to act to correct what she sees as the error made by the court. Currently, Title VII does not contain a definition for supervisor. As a result, it has been left to the courts to define the term. It remains to be seen whether Congress will now act to amend Title VII to expressly define who is a supervisor.

According to Nemeth, the ruling should help employers better understand the difference between a co-worker relationship and an employee/supervisor relationship. It should also help them properly identify who is or who is not a supervisor for purposes of Title VII.

“We receive questions from clients all the time about who is a supervisor and who is not. The definition is important for Title VII, for state law (the Elliott Larsen Civil Rights Act and common law) and for the NLRA,” said Nemeth.

Regardless of classification, employers need to have policies in place that clearly spell out the organization’s prohibition of any type of discrimination or harassment and also have an internal procedure in place so employees can notify employers of potential issues.
About Nemeth Burwell, P.C.: Nemeth Burwell specializes in employment litigation, traditional labor law and management consultation for private and public sector employers. It is the largest women-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.