NLRB Regional Director Continues Board’s Expansion in Higher Ed

A National Labor Relations Board (NLRB) regional director has decided that student resident advisors (“RAs”) are statutory employees under the National Labor Relations Act (NLRA). In George Washington Univ., the regional director ordered that an election take place May 3rd, so that the student RAs can decide whether to unionize through a secret ballot process. The decision is the latest in a string that expands the NLRA’s reach at colleges and universities, and comes on the heels of a memorandum authored by the Board’s general counsel that broadly interprets those decisions.

George Washington University requires all undergraduate students to live in residence halls until their senior year as part of the “student experience.” The university staffs its residence halls with student RAs whose role is to assist other students living in the residence halls and build relationships with and among them. The student RAs have wide discretion in performing their role, including the activities they choose to build relationships. Very few student RAs serve in the role for more than a year.

There are, of course, parameters around being a student RA. They must be full-time undergraduate students who have completed at least one year of studies and are in good standing at the university. Individuals interested in becoming student RAs undergo an application and interview process. If selected, they must sign “Employment Agreements” that set forth the terms of being student RAs. They also must agree to keep any private information about other students that they may receive in their role as confidential. Although student RAs are not required to work a set schedule or minimum hours, they are expected to spend 20 hours a week serving in their role. To ensure that student RAs are readily available to student residents, the university imposes some specific restrictions. For example, student RAs must sleep in their assigned rooms at night and receive approval before undertaking employment or participating in school activities that may be time consuming. At the end of each week, student RAs must submit weekly “reflections” that summarize their interactions with student residents and any issues that have arisen. The university has the right to remove student RAs from their role if they fail to meet the university’s expectations. In exchange for being a student RA, the university provides free housing and a $2,500 stipend for the academic year.

Legal Analysis
In deciding that the student RAs are statutory employees under the NLRA, the regional director looked to the NLRB’s recent decision in Columbia Univ., 364 NLRB No. 90 (Aug. 23, 2016). In Columbia Univ., the Board held that student assistants who meet the common law definition of employees are statutory employees. The decision in Columbia Univ. overturned a prior NLRB decision in Brown Univ., 342 NLRB 483 (2004) that focused the inquiry on whether the student assistant’s role was primarily educational, and, therefore, outside the scope of the NLRA.

Applying the Columbia Univ. standard, the regional director concluded that the student RAs were employees because they (1) perform services for the university, (2) are subject to the university’s control, and (3) receive payment in return for their services. The regional director specified that the student RAs help the university provide other students with a residential life, the university imposes restrictions on the student RAs such as requiring them to abide by the “Employment Agreements,” and the university compensates the student RAs with housing and stipends in exchange for their service. The regional director dismissed concerns that treating the student RAs as employees would negatively impact the educational nature of their role as well as concerns about a conflict between the NLRA and the Family Educational Rights and Privacy Act, which could prohibit the university from disclosing certain student information that the union might seek during collective bargaining if the student RAs unionize.

The regional director’s decision in George Washington Univ. demonstrates that even under the new administration changes in Board law that may reverse the expansion of the NLRA’s reach over the last several years can take time to materialize. President Donald Trump recently named Board member Philip A. Miscimarra, who dissented in the Columbia Univ. decision, as NLRB Chairman, but the Chairman’s voice still remains the minority. There are presently two other Board members who both signed off on the Columbia Univ. decision and likely would agree with the regional director’s decision here. President Trump is expected to fill the two open NLRB seats with individuals whose views align more closely with the Chairman’s, but it is not clear when this will happen, and, even then, it can take time for certain issues – e.g., whether student RAs are statutory employees – to make their way up to the Board. Until then, employers, including colleges and universities, should continue evaluating whether they may be subject to liability under the NLRA in light of relationships that historically have fallen outside the scope of the NLRA’s reach – and how to combat that potential liability.

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If an election takes place in George Washington Univ. and the student RAs vote in favor of unionizing, the university likely will ask the NLRB to review the regional director’s decision. We will keep you posted on any further developments regarding this case and other noteworthy developments. In the meantime, attorneys in the Gibbons Employment & Labor Law Department are available to answer any questions your organization may have about the Board and union matters generally.

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