College resident assistants are almost constantly on call, overseeing dorm full of fellow undergraduate students, enforcing university rules about alcohol and parties and settling midnight quarrels and crises.
These upperclassmen usually are working in exchange for having their room and board covered, and possibly a small stipend, while finishing their coursework.
But a recent ruling by the National Labor Relations Board means students serving as RAs can argue they are employees for organized-labor purposes, which has some concerned unionizing efforts on campuses could lead to unintended consequences.
In considering whether approximately 110 full- and part-time RAs at The George Washington University could be represented by the Service Employees International Union, the acting regional director of NLRB Region 5 – which covers Maryland – determined they could based on the “appropriate legal standard” established last year in a case involving graduate teaching assistants at Columbia University seeking to unionize.
In his April 21 ruling, Sean R. Marshall wrote the Columbia decision dictates that “the critical inquiry is limited to whether the RAs meet the three-part common law definition of employee.” That test simply asks, he wrote, “whether the putative employees perform services for another, under the other’s control or right of control, and in return for payment.”
Ronald W. Taylor, a Baltimore employment lawyer, disagreed with Marshall’s decision. Students are understood to have a finite agreement with the college which will end when they graduate, said Taylor, who is not involved in the case.
“I think the board focused on an aspect of the relationship without actually focusing on whether the parties thought they had an employer-employee relationship,” said Taylor, a partner at of Venable LLP.
While RAs get some compensation for their work, they are primarily at the school for education.
“I think it’s far more complicated than this board has agreed and they’re reasoning is result-oriented,” Taylor said.
NLRB member Philip A. Miscimarra, who dissented in the Columbia University decision, complained in that case that the majority had engaged in a narrow analysis which failed to take into account the unique characteristics of the student’s relationship with their school.
“In particular, my colleagues disregard what hangs in the balance when a student’s efforts to attain an undergraduate or graduate degree are governed by the risks and uncertainties of collective bargaining and the potential resort to economic weapons by students and universities,” he wrote.
Miscimarra laid out the potential dire effects of either student assistants or universities deciding to deploy their “economic weapons.” Students could strike, or their colleges could lock them out. Tuition waivers could be suspended. Student assistants who walked off the job could be replaced.
Other students could be affected as well, given the “wide-ranging requirements and obligations” imposed by the National Labor Relations Act. According to Miscimarra, the act’s requirements could crash headlong into the Family Educational Rights and Privacy Act, which “broadly restricts the disclosure of educational records.” That conflict could create a situation where a university would be violating the NLRA if, for example, it asked student-assistant witnesses in a sexual harassment investigation to keep the details of the investigation and witness statements confidential.
In addition, said Miscimarra, universities could be forced to tolerate far more “outrageous conduct” on social media and in person, given that decisions under the NLRA have established that “it is unlawful for employers to adopt overly broad work rules to promote respect and civility by employees.”
Taylor said the GW decision could be “an additional headache” for colleges and universities.
“We haven’t seen enough of it to see if it’s going to be hugely problematic but it certainly has the potential to be problematic,” he said.
Massachusetts Lawyers Weekly reporter Kris Olson contributed to this report.