On July 2^nd, Harvard announced that it had decided to remove a significant number of graduate students from the bargaining unit represented by HGSU. The University said that it would no longer “include any students in the bargaining unit receiving stipends to pursue research toward their degrees.” The explanation for this decision was brief. The email announcement stated only that “[u]nder the law, only employees can unionize. These stipendee students are not employees because they do not perform services for the university in exchange for compensation, a determination that has been recently clarified by multiple decisions interpreting the NLRA.”

This conclusion runs counter to recent history in the law and at Harvard. First, the law. Under current NLRB precedent, graduate student TAs and RAs are employees of the universities where they work so long as they meet the common law definition of employee and irrespective of whether their relationship with the University could be described as primarily academic or educational. Under the rule of Columbia University, graduate students are employees within the meaning of federal labor law and thus entitled to be included in a bargaining unit where “they perform work, at the direction of the university, for which they are compensated.” Applying this test in Columbia, the Board found that an extremely wide range of graduate student research and teaching assistants met the definition of employee and were appropriately included in a...

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