Graduate Students as Protected “Employees”


shutterstock_244570738Last week, the National Labor Relations Board held that the graduate students of Columbia University who work as teaching assistants, including any research assistants “engaged in research funded by external grants,” are statutory employees protected under the National Labor Relations Act, and thus entitled to join an elected union of their own choosing. The three-member Democratic majority held in Trustees of Columbia University v. Graduate Workers of Columbia-GWC that graduate students were employees under Section 2(3) of the NLRA. This section provides, most unhelpfully, “the term ‘employee’ shall include any employee,” with exceptions irrelevant to the issue at hand.

The Board’s decision was notable in part because a long list of research universities, led by Yale University, had filed a strong amicus curiae brief, warning against the undesirable consequences that could follow if the Board overruled its 2004 decision involving Brown University that came out the other way because “the services being rendered are predominantly academic rather than economic in nature.” These include coursework, individual research, and teaching under the close supervision of their professors, as part of an integrated program leading to an advanced degree.

The universities’ position was strongly resisted in an amicus curiae brief submitted on behalf of the American Association of University Professors making several claims and factual assertions: (1) that the change in status was no big deal; (2) that NYU had entered into a voluntary agreement with a branch of the UAW that was working well; and (3) that over 35,000 graduate students in public universities were organized outside the reach of the NLRA. The rejoinder to this assertion was twofold. The universities noted that the NYU agreement has had its ups and downs, and that public universities are very different institutions than private ones. They also urged that it was dangerous to upset an established tradition by fiat, when not a single one of these universities has ever dealt with a single unionized graduate student. At present, no one has any strong evidence either way.

Hire, Outsource, or Automate?


shutterstock_416963170The finalized updated thresholds for the Fair Labor Standards Act (FLSA) rules governing overtime were announced this week. On net, they are only slightly less damaging than was rumored last year, and — true to form with this administration — they are set to take effect December 1, 2016, less than two months before President Obama leaves office. Consider them a parting shot at any successor who, thanks in no small part to the many state and local pushes to raise the minimum wage, will doubtless have to deal with even more anemic employment.

The new rules state that anyone with a gross annual income under $47,476 from a particular job, whether considered management or not, must now be treated as an hourly worker and be paid overtime for any work over 40 hours a week. Further, the new rules automatically ratchet every three years, to make sure that at least 40 percent of all workers are always hourly. The Department Of Labor claims that this will somehow add $12 million into the economy per year (a paltry amount), but ignores how any gains will likely be eaten in added administrative costs for every business out there. This act will likely not add any jobs to the economy and, in fact, provide even more justification for businesses to automate everything they can. They have certainly made my decision to add more automation that much clearer.

As I have previously discussed, I manufacture electronics. Given the growth we have had in sales over the prior couple of years, the Surface Mount (SMT) line we put in four years ago is approaching its capacity. Right now, we only run a single shift. To alleviate our capacity problems we have four options:

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Back in the summer, the Department of Labor announced a proposed rule change to overtime / hourly wages – effectively forcing all businesses to put any employee under their arbitrary threshold (Approx $50,500) on an hourly pay scale, regardless of their exemption status.  This was targeted to start in 2016.  Is this rule actually going […]

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