“Hot” Issues in Workers’ Compensation in Colleges and Universities: Graduate Assistants and Teaching Assistants

The Functions of Graduate Assistants

Flora (2007) explains that three functional areas are assigned to Graduate Assistants (GAs): teaching, research, and administration. GAs who teach as part of their duties may or may not be assigned as the professor of record on the official grade roster; in some institutions, they may more accurately be called Graduate Teaching Assistants (GTAs). The second area to which a GA may be assigned is research, usually involving publications, grants, or laboratory experiments; some institutions classify them as Graduate Research Assistants (GRAs). The third functional area to which a GA may be assigned is the least common, and that is to perform administrative tasks, such as program or accreditation reports or evaluations, recruitment, or other similar duties (Flora, 2007). Whatever the duties may be, these are usually detailed in the university’s offer or “award letter,” which will in turn give rise to a contract or agreement. In the award letter, one would normally expect to find a statement of the time period of the assignment, the requirements to maintain the award, and the benefits that the GA will receive.

In most universities, graduate students receive tuition scholarships, stipends, and health insurance. However, GAs often report that the coverage of the student health insurance is limited and that the pay they receive is not enough for them to support themselves or their families (Douglas-Gabriel, 2016). Although wages and stipends vary widely by university and field of study, according to the US Bureau of Labor Statistics (2020), the median pay for the approximate 131,490 GTAs in the states that reported their wages as of May 2018 was US$33,700 per year. That figure probably accounts for the description heard for decades throughout American higher education that GAs and teaching assistants (TAs) are “cheap labor” (Bannister, 2005; Epstein, 2005).

For purposes of this article, given that GAs and TAs often perform the same roles at a university, we will use the GA designation to refer to both classifications, unless there is a specific reason not to do so or unless otherwise indicated.

Statutory Considerations Regarding Employment Status of GAs

The starting place in determining the employment status of a GA in all of the United States is the statutory definition of an employee. The vast majority of the states define an employee as any person receiving wages or remuneration from an employer for the performance of work or service while engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written (Larson et al., 2018, p. 297). Another consideration is whether the GA falls under the exclusions or exemptions of a covered employee under the workers’ compensation statute of a particular state.

For a person to be covered under workers’ compensation, there must be an employer and employee relationship on the date of the accident. Colleges and universities must also consider whether they are statutorily bound to provide workers’ compensation benefits or whether there is another entity having jurisdiction over the workers’ compensation matter. For example, the state of Florida statutorily recognizes arbitration as an alternate dispute resolution in chapter 440 of the Florida Statutes (§440.1926). Also, collective bargaining agreements are valid and binding on the parties so long as the agreement does not diminish an employee’s entitlement to benefits otherwise outlined in chapter 440 of the Florida Statutes (§ 440.211, Fla. Stat.).

Unless excluded by a statutory provision and/or case law, all employers—whether public or private higher education institutions—are bound by each state’s workers’ compensation statute. For example, employment in the state of Hawaii does not include service for a school, college, university, college club, fraternity, or sorority if performed by a student who is enrolled and regularly attending classes in return for board, lodging, or tuition, furnished in whole or in part (§ 386-1, HRS). Therefore, it is incumbent upon public and private higher education institutions to use care when entering into employment contracts with GAs.

There are some differences between public and private higher education institutions and their underlying bases for offering or declining to offer workers’ compensation coverage to GAs. A major difference is the effects of collective bargaining decisions regarding employee status of GAs in state versus private institutions, a topic that will be addressed below.

Considerations in Determining Employment Status of GAs in Private Higher Education Institutions

The question of coverage has been more complex for private than for public institutions. The main issue of whether GAs at private institutions are considered employees has been intricately linked to whether GAs are considered employees for purposes of organizing into a union (Cain, 2017). In public institutions the right to collective bargaining in higher education is usually part of each state’s statutory scheme, thereby giving GAs “…the right to unionize under state labor law” (Pollack & Johns, 2004, p. 243). By contrast, in private institutions, that determination is made by the National Labor Relations Board (NLRB), a federal agency, because public universities are “expressly exempt” from the definition of “employer” under the National Labor Relations Act (NLRA). As a result, GAs in public institutions have never been able to unionize under federal law through the NLRB. Despite this dichotomy, in past decades the NLRB has greatly influenced and affected the decisions of public institutions that are not under its jurisdiction, as “state courts and labor boards [have] often followed NLRB precedents when interpreting public-section bargaining statutes” (Saltzman, 2000, p. 43).

This enhanced role of the NLRB requires us to review the NLRB’s decisions regarding the question of whether GAs/TAs are considered employees.

The NLRA and the NLRB: A Seesaw of Decisions

The role of the NLRA and NLRB over private colleges and universities commenced 50 years ago following the decision in the Cornell University case (183 N.L.R.B. 329 (1970)), in which the NLRB ruled that private universities were businesses engaged in interstate commerce. Nevertheless, at that time, the NLRB did not claim authority over the relationship between private institutions and their students (College and University Professional Assoc. for Human Resources-The Higher Ed Workplace Blog, 2020). By 1969, a union of TAs gained recognition at the University of Wisconsin-Madison, a public institution (Feinsinger & Roe, 1971). Soon, TAs in other public colleges and universities began organizing, and during the 1990s, TAs in other public colleges and universities such as the University of Iowa, Wayne State University, UCLA, Berkeley, and six other University of California campuses were able to form unions (Saltzman, 2000, p. 43).

The first case wherein GAs private institutions sought recognition from the NLRB as employees for purposes of unionizing was Adelphi University (Adelphi University, 195 NLRB 639, 1972). The GAs joined the Adelphi faculty as part of a collective bargaining initiative in the early 1970s. The NLRB did not allow the GAs to join the faculty as part of their unionizing effort because the Board ruled that GAs did not share “a sufficient community of interest with the other faculty” to join the faculty unit (Pollack & Johns, p. 248). Two years later, in The Leland Stanford Jr. University and the Stanford Union of Research Physicists, 214 NLRB 82 (1974), the Board stated unequivocally that GAs were not entitled to collective bargaining rights because they were students and not employees—and therefore, among other things, would not be a covered employee under workers’ compensation law. Graduate students at Yale University’s Graduate Employees Student Organization in the 1990s also sought recognition, to no avail (Johnson & McCarthy, 2000).

Then, on October 31, 2000, in a decision by the NLRB involving New York University (NYU), the Board ruled for the first time that certain GAs at private universities were employees. (New York Univ., 2000 NLRB LEXIS 748) (Harvard Law Review, 2001). Citing Supreme Court precedent (Cmty. For Creative Non-Violence v. Reid (1989) and NLRB v. United Ins. Co. (1968)), the Board analyzed the duties and compensation of GAs under common-law agency principles, noting that “[t]he GAs perform services under the control and direction of the employer” (N.Y. Univ., 2000, at 65). The Board also noted that most assistants work “under the direction and control of faculty members, are compensated, and are not required to do the work to obtain their degrees.” (N.Y. Univ., p. 4.) It is important to note that the Board excluded graduate student graders and tutors, and those without teaching duties, who conducted research largely independent of direct faculty control, or who received funding from external grants (The Harvard Law Review Assoc., 2001, p. 2558).

For the next 4 years, GAs in private universities joined their counterparts in public institutions who already had the right to organize under state labor law in 14 states and voted to be represented by unions (Pollack & Johns, 2004). However, this was comparatively short-lived. In July 2004, the NLRB heard the Brown University case, in which the university administration appealed a decision of the regional director, who had determined in 2001 that based on the NYU precedent, GRAs and GTAs at Brown University, a private institution, were “statutory employees” entitled to collective bargaining under the NLRA. In a 3–2 vote, the NLRB ruled that GRAs and GTAs at private universities, for whom supervised research or teaching is an “integral component” of their academic program, were students and not employees (Brown Univ., 342 NLRB at 8), thereby overruling the 2000 NYU decision. In light of that ruling, pending cases from at least two private institutions (University of Pennsylvania and Columbia University) were dismissed, ending the efforts of GAs in other private universities to unionize (Pollack & Johns, 2004, p. 244). Once the decision was made that GAs were not covered employees, this once again allowed the institution to deny workers’ compensation benefits to GAs.

It is worth noting that the NLRB’s position on this issue has roughly tracked the identity of the political party that controls that agency at the time of the various decisions. The Brown University decision was rendered by a 3–2 vote along partisan lines, with three Republicans voting to overturn the NYU decision at a time when a Republican occupied the White House. The NYU decision had been rendered at the end of a democratic administration. The Brown University decision raised the question of the validity of the unions that represented graduate students—unions that were formed after the NYU decision. The resulting uncertainty left each institution and state to decide on its own how to treat the existing collective bargaining agreements negotiated with the pre-NYU unions of GAs (Pollack & Johns, 2004, p. 255).

To be sure, Brown did not forbid private universities from providing workers’ compensation insurance coverage to GAs, and GAs in some private universities (including some in the Ivy League, such as Columbia University and Dartmouth College) have had such insurance included among the benefits provided. In fact, in 2014, GAs at Columbia University and Dartmouth College were covered by workers’ compensation through their respective institutions. The Brown University administration, of course, had not provided such a benefit to its students (Patel, 2014), which gave rise to the NLRB ruling in the 2004 Brown case.

Graduate students continued to have injuries while working on campus in institutions where they were not covered by workers’ compensation insurance. A well-publicized example concerned a Cornell University PhD student in chemical engineering, Richard Pampuro, who suffered permanent, disabling damage to his right hand while working in a protein engineering lab in August of 2013. Glass from a shattered bottle pierced his arm, severing tendons and an artery (Benderly, 2014). In the absence of workers' compensation insurance that would have covered Pampuro, the Cornell University Graduate Professional Student Assembly passed a resolution calling upon the University to provide monetary and health compensation for him and for graduate students injured while working on a Cornell campus (Mehrotra, 2014; Patel, 2014). “Workers’ compensation is administered and regulated by each state, so it’s left to each state to define the employer-employee relationship” (Patel, 2014, para. 9). Therefore, the administration at Cornell University could have decided in 2013 to cover the GAs, just as the University also covered teaching faculty. Patel (2014) explains: “In New York, people engaged in a teaching…capacity at a charitable or educational institution are exempted from being covered under workers’ compensation—unless, the law says, the employer has elected to bring such employees under the law by securing compensation” (para. 11).

Perhaps not surprisingly, after another change in the White House, the NLRB in a 3–1 decision (Columbia University (364 NLRB No. 90, 2016)) overturned the Brown decision, essentially returning GAs to the NYU status. On August 23, 2016, the Board ruled that GAs had an employment relationship with their University (Cain, 2017; Douglas-Gabriel, 2016; Patel, 2016). The NLRB ruled that any student who performed services for an institution under the control of the institution as his/her employer for compensation purposes is a common-law employee entitled to unionize under the NLRA. But this time, the NLRB also included in its definition of employees undergraduates (who may serve, for example, as graders and discussion leaders) as well as master’s degree candidates and PhD candidates. In making that decision, the NLRB ignored or gave no weight to the fact that many students are required to serve as TAs or research assistants as part of the requirements of their graduate programs, whether or not they would choose to do that job (Ambash, 2016).

Opponents of GA unionization in the Brown case claimed that when graduate students unionize there is a potentially deleterious effect on the graduate-student educational process, in student-teacher relationships, and in academic freedom (Brown University, 2004, p. 490). However, the proponents of GA unionization in the Columbia University case argued that those claims had not been borne out by empirical studies and that the relationship between graduate students and the faculty they work with might even be strengthened by unionization (Rogers, Eaton, & Voos, 2013, p. 507). Since the Brown case, there have been several empirical studies that have shed light on this. One of the most complete is the study conducted and reported by Rogers et al. (2013). The researchers used survey data collected from Ph.D. graduate students in five academic disciplines across eight public universities in the United States and found that unionized GAs “…reported higher stipends and greater pay fairness and adequacy than did nonunion graduate student employees” (p. 500). The authors deemed all those differences to be statistically significant. The same researchers stated: “Across the board, student employees in unionized universities reported more positive student-teacher relationships, more academic freedom, and greater economic well-being than did student employees in nonunionized universities” (p. 502). Although they also found that most of those differences were not statistically significant, their results support the claim that unionization might have either no impact or even a positive impact on faculty-student relationships (p. 507) rather than the NLRB’s contention in Brown that unionization would harm those relationships. Previously, two other studies surveyed liberal arts and sciences faculty at five large doctoral-granting public universities about their attitudes toward graduate students (Hewitt, 2000) and college administrators and graduate student union representatives (Julius & Gumport, 2003) and found that graduate student collective bargaining did not have a negative effect on the educational process, faculty-GA mentoring relationships, or academic freedom.

After the NLRB’s 2016 decision in the Brown case, 15 elections for graduate student unions had been held at private colleges by October 2019. “Five colleges—American, Brandeis, New York, and Tufts Universities, and the New School—have collective-bargaining contracts with their students. Four others have certified or recognized graduate-student unions—Brown, Columbia, Georgetown, and Harvard” (Patel, 2019, para. 4).

Another Possible Reversal? Not a Case, but a Proposed Rule

As was mentioned previously, the cases and decisions by the NLRB detailed on this issue have tracked changes in the party affiliation of various presidents of the United States at the times of those decisions. Thus, during the Clinton administration, the New York University case was decided in favor of considering graduate students at private colleges as employees and therefore having the right to engage in collective bargaining. Under George W. Bush, the NLRB reversed that decision in the 2004 Brown University case. And in 2016, at the end of the Obama administration, the right of GAs to unionize was reinstated by the NLRB. Following the election of President Trump, it was expected that a new case might again arise that would cause the new NLRB to reverse course and deny GAs the rights of employees. But the Trump-era NLRB instead proposed a new rule on September 23, 2019 (Herbert & van der Naald, 2020). Rather than looking at the facts of each case that comes before it, the Board proposed an overarching rule that would exclude teaching and research assistants from being covered by the NLRA (Patel, 2019). The NLRB’s proposed regulation would establish that

…students who perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies are not “employees” within the meaning of Section 2(3) of the Act…which contemplates jurisdiction over economic relationships, not those that are primarily educational in nature. This rulemaking is intended to bring stability to an area of federal labor law in which the Board, through adjudication, has reversed its approach three times since 2000. (National Labor Relations Board, 2019, p. 49691)

The NLRB requested comments from interested parties, and because of COVID-19, the comment period was extended until February 28, 2020. The NLRB had indicated that it intended to review the comments, examine the empirical evidence, and the current GAs’ collective bargaining contracts in private and public colleges (College and University Professional Association for Human Resources, 2020). However, in a surprising move, on March 12, 2021, the NLRB withdrew its proposed rule, in effect leaving in place the 2016 decision that cleared the way for collective bargaining for GAs in private institutions. Nevertheless, withdrawal of the proposed 2019 rule will not settle the ongoing debate. The NLRB could reconsider the issue in a future litigated case. (Kelderman, 2021).

The imposition of such a rule had been criticized as an attempt to amend the NLRA by administrative action of an administrative agency. “Congress is the entity that amends statutes, not an administrative agency” stated William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, at the City University of New York’s Hunter College (as quoted in Patel, 2019). Congress seems to have heard Herbert’s complaint. In November of 2019, H.R. 5104 the Respect Graduate Student Workers Act was introduced in the US Congress and has been referred to the House Committee on Education and Labor (Congress.gov). On January 22, 2020, Senator Bernie Sanders introduced a companion bill, S. 3219, in the US Senate (Antonyan, 2020). As of this writing, no vote has been taken on either bill.

Having considered how NLRB decisions impact coverage for GAs in private institutions, we now address case law dealing with both state and private universities in workers’ compensation.

When Courts Make the Decision (or Not)

Sometimes it is the courts that are called upon to decide whether a GA is considered an employee or a student for purposes of workers’ compensation. A sad but instructive case is that of graduate student Han Duy Nguyen. In 2007, Nguyen twice met with an MIT program coordinator to seek assistance with test-taking problems. The coordinator recommended that Nguyen meet with MIT’s student disability services, as well as with MIT’s medical services. Nguyen declined both services, but he did seek treatment from numerous private psychiatrists and psychologists outside the university’s system. Nguyen served as a TA during the spring of 2009 and was offered another teaching assistantship for the ensuing fall. He was also given a summer research assistant position at an MIT lab. On June 2, 2009, Nguyen climbed to the top of the roof of the building in which he was working and leaped to his death. Dzung Duy Nguyen, the father and administrator of Han’s estate, sued MIT for breach of contract and wrongful death, claiming that Han was a student and not an employee at the time of his death and that the University had failed in its duty to provide reasonable care for his son by failing to prevent his suicide. The University asserted that Han was acting as an MIT employee and that, therefore, the wrongful-death claim was barred by the exclusivity provision of the workers’ compensation statute. The trial court granted summary judgment in favor of MIT on the wrongful-death and other tort claims but denied summary judgment on the workers’ compensation claim. The father appealed. The Supreme Judicial Court of Massachusetts affirmed the entry of summary judgment on the tort claims as well as the denial of summary judgment on the workers’ compensation claim; as to the latter, the court found that the record was unclear as to Han’s work status, leaving the matter for resolution at trial. The Court went on to state that there were “too many conflicting pieces of material evidence presented to this court to determine…the unique question of whether or not Nguyen was an MIT employee at the time of his death” (Dzung Duy Nguyen v. Massachusetts Institute of Technology, 2018, pp. 436, 461). No further proceedings were reported.

In Doe v. Yale Univ. (2000), a medical resident who contracted AIDS from a patient when she pricked her thumb with a bloody needle while attempting to perform an arterial line insertion claimed that her accident resulted from the university’s negligence in training and supervising her in the clinical handling of needles during her residency at the Yale-New Haven Hospital. The University asserted that the plaintiff’s claim of negligence was barred by the exclusivity provision under the Workers’ Compensation Act because there was, in effect, a joint venture between the University and the hospital, which rendered the University an “employer” as that term is defined in the Workers’ Compensation Act. The trial court struck the University’s defense, and after a jury returned a verdict for the plaintiff, the University appealed. The Supreme Court of Connecticut remanded the case and ordered a new trial, holding that the University’s defense should not have been stricken because “the defendant could have proved that it had a sufficient right to control the plaintiff’s conduct to satisfy the requirements of the Act for purposes of pleading that it was entitled to immunity” (Doe, p. 642).

The issue of what constitutes wages and what constitutes scholarships in a GA’s compensation has also given rise to relevant case law. In 1990, Florida’s First District Court of Appeal reversed and remanded the decision of a judge of compensation claims in the case of a University of Miami graduate student and lab assistant in the Department of Biochemistry who was exposed to toxic fumes, resulting in pulmonary impairment. In calculating the GA’s average weekly wage for her temporary total disability benefits, the judge had included the GA’s tuition reimbursement and a lump-sum scholarship in her total monthly earnings. The case was remanded with directions to exclude the scholarship from the calculation because that award was given to the GA for her academic excellence and was not based on any services rendered (University of Miami Medical School v. Singleton, 1991).

Even though public institutions have the right to treat graduate students as employees based on their own state’s statutes and their governing boards, a court may render that decision for them. In 1992, in Association of Graduate Student Employees v. Public Employment Relations Bd. and The Regents of the University of California (1992), the First Appellate District of the Court of Appeals of California ruled that the Association could not seek collective bargaining rights as employees under California’s Higher Education Employer-Employee Relations Act because the California Higher Education System and the state’s Public Employment Relations Board were “in the best position to gauge the effect collective bargaining would have on the delicate balance between university employment and financial support” (p. 2).

Institutions of higher education have been recognized in the past two decades to have a fiduciary duty to students in the context of claims of sexual harassment. This concept of fiduciary duty has, in turn, given rise to the argument that such a duty is separate from the duties of an employer and therefore permits the assertion of negligence claims against the employer. The bringing of a separate negligence claim was tested in 2013 when a GA at the University of New Hampshire sued for injuries sustained from inhalation of harmful vapors due to a faulty hood and vent system. She was considered by the University as an employee due to her functions and her receipt of a stipend, a fellowship, a tuition waiver, and health insurance. Notwithstanding the exclusivity provision attaching to workers’ compensation, she contended that she was entitled to bring negligence claims—not as an employee, but as a student—because the aforementioned fiduciary duty was separate from the duty owed to her as an employee. In effect, she argued for recognition of a “dual capacity” doctrine. Her arguments did not succeed, and the “dual capacity” argument has not taken hold (Lennartz v. Oak Point Assocs., P.A. & a., 2015).

There will continue to be cases, no doubt, that will provide precedent for future case law.

What Should Guide the Institutions’ Determination of Workers’ Compensation Coverage for GAs?

As detailed in this review, a public or private institution of higher education may voluntarily offer workers’ compensation coverage. As it relates to GAs, whose duties are primarily low-risk, the cost of securing workers’ compensation coverage for them may be low and therefore advisable for institutions. GAs would thus be entitled to indemnity and/or medical benefits under the workers’ compensation system in the particular state. The problem arises when an institution decides not to offer such coverage. Because the employment status of GAs is nontraditional and therefore unclear, institutions have struggled in deciding whether or not to extend workers’ compensation benefits to GAs and the bases for doing so or declining to do so. To make this decision, both public and private institutions should therefore consider the following:

Explore, through the university’s risk assessment specialist(s), the costs and risks of providing workers’ compensation insurance to their GAs. Pros: It may be worth the cost for two reasons—the moral commitment of protecting the health and well-being of GAs and the financial advantages to the institution of avoiding possible large verdicts in tort cases. Cons: The University must budget for the additional cost of covering its GAs.