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NLRB Ruling re: Private University Labor Update

Client Alert

Private University Labor Update

Graduate students employed by private universities are permitted to unionize under federal law.

On Tuesday, August 23, 2016, the National Labor Relations Board (“NLRB” or “Board”) issued a 3-1 decision in Columbia University that student assistants working a private colleges and universities are statutory employees covered by the National Labor Relations Act. The decision reverses the NLRB’s decision in Brown University 342 NLRB 483.

The NLRB had long held that students who teach at private universities were not employees. In 2000, a Democrat laden Board altered the NLRB’s principle in New York University, 332 NLRB 1205 (NYU) when it held that graduate assistants were employees. In 2004, a Republican led Board in Brown University reconsidered NYU and concluded that the 25-year precedent was correct, and that NYU should be overruled.

The NLRB has swung back to a Democrat majority. That majority reversed Brown University saying it “deprived an entire category of workers of the protections of the Act without a convincing justification.”

What does it mean for Private Universities?

The authority to define the term “employee” rests primarily with the NLRB absent an exception within the National Labor Relations Act. For as long as the Board maintains a Democrat majority, graduate assistants will be employees under the NLRA and eligible for all collective bargaining rights.

Being recognized as “employees” gives graduate students the right to organize and collectively bargain the terms and conditions of employment. The main terms and conditions will likely be wages/stipends, health coverage (including family coverage), hours of work, holidays, and paid/unpaid leaves of absence.

The main concern that private university employers may face is an overreaching organizational campaign. All graduate students are not equal, and an employer can challenge the appropriateness of a collective bargaining unit under a “community of interest” evaluation. In determining the community of interest, the similarity in hours, wages, benefits, skills, supervision, terms of employment are the most indicative of mutual interest.

For additional information, please contact the Labor and Employment team.  John N. Childs at (330) 253-1946, Jeffrey C. Miller, at (216) 287-5265.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.