Higher Education Law Report

The United States Court of Appeals for the Eleventh Circuit issued a long-awaited decision in the Georgia State e-reserves copyright case on October 17, 2014. The Court of Appeals reversed and remanded to the District Court for reconsideration in light of its opinion rejecting that court’s formulaic fair use analysis. In 2008, three publishers (Cambridge University Press, Oxford University Press, and Sage Publications) filed suit in the Northern District of Georgia, alleging that Georgia State University’s e-reserves system – through which students could access electronic content posted by faculty – infringed copyrights held by the publishers. In 2012, the District Court issued an order finding that the university had infringed the publisher’s copyrights in several instances, but that the fair use defense applied to the majority of the alleged infringements. The court applied the four factors of a fair use defense: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use upon the potential market. The court granted declaratory and injunctive relief to the publishers, but ultimately found that the University was the prevailing party and awarded costs and attorneys’ fees.  On appeal, the Court of Appeals reviewed the District Court’s application of the four factors, as well as the District Court’s balancing of the outcome of the four factors, noting that because of the circumstances of this case some of the factors weigh more heavily on the fair use determination than others. Regarding the first (the purpose and character of the use) and fourth (the effect of the use upon the potential market for or value of the copyrighted work) fair use factors, the Court of Appeals affirmed the District Court’s holdings that these weighed in favor of a fair use defense. On the second factor, the nature of the copyrighted work, the Court of Appeals reversed, holding that the District Court should have evaluated each work copied to determine whether it contained “evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information.” If the work contained more than was necessary, then it should have weighed in favor of the publishers or been neutral, although the Court noted that this factor is largely unimportant since the works at issue are not fictional works. On the third factor, the District Court had utilized a quantitative test with respect to the “amount and substantiality taken” in relation to the copyrighted work as a whole, relying on the 10% or one chapter approach set forth in the “Classroom Guidelines” which form part of the legislative history of the Copyright Act. In rejecting that type of blanket approach, Court of Appeals found that the lower court should have applied a more individualized fair use analysis, “considering the quantity and quality of the material taken, including whether the material taken constituted the heart of the work.” The Court of Appeals emphasized that the Classroom Guidelines have never been codified and are too formulaic for a balanced fair use analysis. The Court of Appeals vacated the injunction, declaratory relief, and award of attorney's fees and costs, and remanded to the lower court for further proceedings. The Way Forward for Universities Even though this case will continue, the Court of Appeal’s ruling provides useful guidance to institutions of higher education. Specifically, a formulaic approach to fair use rather than a case-by-case inquiry opens a fair use analysis to criticism and attack. As a result, copyright policies or guidelines should require an individualized analysis of the amount taken of a copyrighted work in relation to the work as a whole, rather than simply relying on the 10% or one chapter rubric set forth in the “Classroom Guidelines.” Both the quantity and the quality of the material taken must be considered under the third factor, including whether the material taken constitutes “the heart of the work,” and whether the material used is excessive in light of the purpose of the use and the threat of market substitution.

The Center for Disease Control (CDC) has issued guidance to colleges and universities on how to respond to the spread of Ebola in West Africa.  The guidance includes suggested precautions with respect to (a) study abroad programs, research and other education-related travel to the region, and (b) individuals arriving on campus from the region or otherwise known to have been exposed to Ebola. Recommendations on Education-Related Travel to Countries Where the Ebola Outbreaks are Occurring The CDC has issued a Warning-Level 3 Travel Notice for Guinea, Liberia and Sierra Leone, and an Alert-Level 2 Travel Notice for Nigeria. The CDC recommends that all non-essential travel to Guinea, Liberia and Sierra Leone be avoided, and advises that education-related travel to these countries by students and/or faculty be postponed until further notice.  The CDC has not yet advised against travel to Nigeria, but recommends that travelers to Nigeria use enhanced precautions to prevent the spread of the Ebola virus.  In addition, the CDC cautions that if conditions worsen in Nigeria, it may additionally recommend against non-essential travel to Nigeria, and advises that institutions consider this possibility when deciding whether to proceed with education-related travel plans in Nigeria. These recommendations extend to all travelers, even if travelers do not plan to be in contact with people infected with the virus.  The CDC advises that there is currently no known risk of contracting Ebola in other countries in the West Africa region where Ebola cases have not been reported, but cautions that circumstances could change rapidly and advises institutions to continue to monitor the situation. Recommendations with Respect to Students and Faculty Arriving to Campus from Countries where the Ebola Outbreaks are Occurring or Otherwise Known to Have Been Exposed to the Virus The CDC is not recommending that institutions quarantine individuals based solely on travel history.  Rather, the CDC recommends that institutions conduct a symptom and risk exposure screening for all individuals (including students and faculty) who have traveled to countries where the Ebola outbreak is occurring, or who have had contact with an infected person, within the last 21 days.  In the event that symptom screening is positive or if a student or faculty member has had any high or low risk exposure, the institution is advised to notify state or local health authorities for instructions regarding medical monitoring, lab testing, and control measures such as patient quarantines or isolation. If an individual displays no symptoms and presents no known exposure risk, institutions are advised to instruct the individual to self-monitor through temperature and symptom reporting until the end of the 21 day period, and to report immediately if symptoms appear. Additional Guidance and Recommendations The CDC’s advice includes additional information as to how Ebola is, and is not, transmitted, and guidance as to corresponding cautionary measures for persons on campus.

As previously noted in this blog, the National Labor Relations Board (“NLRB”) has sought amicus curiae briefing in the Northwestern University and College Athletes Players Association matter on review of the NLRB Regional Director’s decision that the University’s grant in aid scholarship football players are employees and the subsequent direction of election.  A number of interested parties, including the Higher Education Council of the Employment Law Alliance (“HEC-ELA”), filed amicus curiae briefs in support of Northwestern University, the putative employer, in the case.  Bond, Schoeneck & King, PLLC, a member of the HEC-ELA, served as counsel on the amicus brief along with a number of other law firms.  To download or read the HEC-ELA amicus curiae brief, please click here. The NLRB’s decision in the Northwestern University matter could have far reaching implications, not only for Division I college athletes, but also for graduate students and others should the Board decide to revisit its ruling in Brown University, 342 NLRB 483 (2004).  After the Regional Director’s decision and direction of election, the NLRB did conduct an election, but those ballots have been impounded pending the outcome of the proceeding at the Board level.

The New York State Senate passed a bill today that would amend New York’s Campus Safety Act to require institutions, effective immediately upon its enactment, to notify law enforcement of any report of a violent felony or that a student who resides in institution owned or operated student housing is missing.  The proposed legislation, which was previously passed by the New York State Assembly on May 5, 2014, will now be presented to the Governor for signature.  Under the proposed legislation, institutions would be required to notify law enforcement as soon as practicable, but no later than 24 hours after receiving any such report.  The New York State Education Law currently requires institutions to adopt and implement plans for notifying law enforcement, but does not mandate that notification be given. Under federal law, the Clery Act requires institutions to have a policy that encourages the reporting of all crimes to campus police and to law enforcement.  The Clery Act already requires institutions to notify law enforcement when any student who lives in on-campus housing has been determined to be missing for 24 hours.  Therefore, if the proposed legislation is enacted, institutions would comply with its missing student notification requirements by continued compliance with the notification procedures required under the Clery Act. Notably, the proposed legislation’s reporting requirements “shall take into consideration applicable federal law, including, but not limited to, the federal Campus Sexual Assault Victims’ Bill of Rights under Title 20 U.S. Code Section 1092(f) which gives the victim of a sexual offense the right on whether or not to report such offense to local law enforcement agencies.”  This language makes clear that if a sexual assault occurs which constitutes a violent felony under New York State law, an institution’s reporting requirements under the proposed legislation would give way to the rights of the victim under federal law to decide whether or not to report the incident.

Effective June 14, 2014, the New York City Human Rights Law will extend its nondiscrimination protections to unpaid interns.  An intern is defined as “an individual who performs work for an employer on a temporary basis whose work: (a) provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced; (b) provides experience for the benefit of the individual performing the work; and (c) is performed under the close supervision of existing staff.” The amendment was enacted in response to Wang v. Phoenix Satellite Television US, Inc., a 2013 Southern District of New York decision which held that unpaid interns do not qualify as employees under the New York City’s Human Rights Law. There is a similar effort underway to amend the New York State Human Rights Law, which could reach a Senate vote shortly. This has implications for higher education institutions in New York City who host interns from other institutions on their campuses, as well as for their own students who intern off-campus.  And in those circumstances where an institution is sufficiently involved with a hosting employer that it could constitute a joint employer for employment law purposes with that hosting employer, there is the potential for additional exposure.  In this latter instance, the impact of the amendment could even extend to institutions outside of New York City (and the direct jurisdiction of the NYC Human Rights Law) that send students to intern with New York City employers.  The nondiscrimination policies of all these institutions should be reviewed to ensure that they appropriately address interns. On a somewhat related note, lawyers from Bond recently submitted an amicus brief on behalf of the American Council on Education, and others, urging the Second Circuit to defer to higher education institutions on the value of unpaid internships in the context of federal wage-hour law.

Inside Higher Education recently issued its 2014 Survey of College and University Presidents, conducted by Gallup, and it makes for some very interesting reading.  The survey results are based on responses from 846 college and university presidents and chancellors (and some other top administrators), with 438 responses from public institutions, 347 from private institutions and 37 from the for-profit sector. The survey provides responses to questions covering government collection of data and reporting, budget and finances, sexual assault policies, race relations and the American Studies Association Boycott of Israeli universities. With respect to the federal government’s efforts to collect and publish career data and other outcomes for graduates, about half of the respondents agreed that it was appropriate (with 17% strongly agreeing) for the government to do so.  However, only 13% agreed (2% strongly) that the government would accurately collect and report that data. Just a little more than 60% of responding institutions indicated that they now report institutional average loan debt of graduates on their websites, with just under 60% reporting institutional job placement rates for graduates.  Far fewer reported average loan debts (19%) and job placement rates (45%) at the program level, although that information likely would be more valuable to students.  Interestingly, 53% reported that they should report program level debt and 74% reported that they should report program level job placement rates, raising the obvious question of why so many more institutions think they should report this information than actually do so.  Only a little more than 30% reported starting salaries of recent graduates, 9% reported income of graduates 5 years out, and only 4% reported income 10 years out. While 62% of all respondents were confident that their institution’s financial model was sustainable over the next 5 years, that number dropped to 50% when looking at a 10 year horizon.  Interestingly, public and private non-profit institutions responded in those same percentages, but for-profit institutions showed greater confidence in the sustainability of their models with 73% agreeing that their financial model was sustainable over 5 years and 70% over 10 years.  Fifteen percent of all respondents did not have confidence that their institution’s model was sustainable over the next 5 years, and 22% lacked confidence when looking over 10 years. Only 18% of all respondents agreed that reports of a significant number of higher education institutions facing an existential financial crisis are overblown, while 60% did not agree that these concerns are overblown.   Only 22% agreed that the economic downturn starting in 2008 was effectively over at their institutions, while 54% disagreed that this was the case on their campuses. With respect to sexual assaults, 71% of all respondents agreed that higher education institutions, generally, need to improve the way they respond to sexual assault reports, while 95% felt that their own institutions handled sexual assault cases appropriately.  Forty-nine percent of all respondents felt that sexual assault allegations are best investigated by law enforcement, rather than the institution, while 30% disagreed with that view. Similarly viewing their own campuses as better than “the rest,” 90% of all respondents felt that race relations on their campuses were excellent or good, while only 53% felt that was the case on campuses across the country. The full survey, which contains considerably more information and breaks down survey responses by type of institution (public/private/for-profit and doctoral/masters/baccalaureate), is well worth reviewing.

As reported here last week, the NLRB’s Regional Director in Chicago has determined that those members of the Northwestern University football team who receive grants-in-aid are “employees” under the National Labor Relations Act.  Even aside from the questionable basis for this conclusion, the Regional Director’s decision begs the question what are the possible unintended consequences of this decision?  And there are quite a few, only some of which are mentioned below. Perhaps the first unintended consequence is whether the Board’s determination, if upheld, will actually render these student athletes ineligible to play intercollegiate football.  Under NCAA By-law 12.1.2, only amateurs are eligible for competition under NCAA rules.  Therefore,  student-athletes may not use their athletic skill for pay in any form in the sport in which they compete.  If a student-athlete is receiving compensation for their services, as determined by the Regional Director, is that student-athlete now receiving “pay in any form in [their] sport” and as a result no longer an amateur able to compete?  The irony of course is if that ends up being the NCAA’s interpretation of its by-law, that would of course defeat the very purpose behind unionizing in the first place.  Moreover, this possibility is not dependent upon the student-athletes actually unionizing but rather on the mere fact that they are now “paid” for playing.  It would seem that if bargaining actually resulted and any additional benefits were provided to these student-athletes, the likelihood of a loss of amateur status would be even greater. For any other “employee” being “compensated” for their services, income tax is required to be paid on that compensation.  While the test for an employee under the National Labor Relations Act may not be identical to the test used by the IRS, how far behind can taxation be?  Using the numbers reported in the Regional Director’s decision for the value of the players’ grants-in-aid (as much as $76,000 per year at Northwestern), where is a player, or his family, going to come up with the cash to cover this tax bill? In addition, if an employee for this purpose, do players now become employees for purposes of Workers’ Compensation law, and the exclusivity of relief against their “employer” for injuries incurred “on the job” (which may well be less than beneficial to players)? Just how effective can collective bargaining even be in this circumstance?  Colleges and universities are constrained by NCAA rules in terms of benefits that can be given to student-athletes, so it is hard to imagine how bargaining could result in “more” than what is currently provided student-athletes.  In addition, the impact of Title IX would likely require any benefits provided to, for example, football players to be provided to a comparable number of scholarship student-athletes on women’s teams.  Or more likely, the added cost of so complying with Title IX simply makes it that much less likely that any meaningful benefits would flow from bargaining.  And would there be any institutional incentive to provide benefits to non-scholarship players, who even the Regional Director found were not employees?  What would the impact be of some student athletes on a team having the benefits of collective bargaining and others not? Of course, this ruling is presumably not limited to football teams and players.  How does it impact other sports where perhaps only a minority of team members receive grants in aid (and therefore might be “employees” who can be covered by a collective bargaining agreement), but the majority do not (and therefore are not employees at all)? In fact, this ruling presumably is not even limited to athletics.  At some institutions, members of the marching band receive scholarships in return for the “services” they provide.  Undoubtedly, they too are subject to various rules that constrain when and what they can and cannot do (for example, not schedule classes that conflict with afternoon practices).  Other student activities (e.g., Debate at some institutions) also carry stipends or scholarships and likely subject participating students to certain rules not applicable to others.  Are they all now “employees” eligible to organize?  And given the Board’s willingness to recognize “micro-units,” will these all be separate bargaining units? These are just some of the “unintended consequences” flowing from what appears on any number of levels to be an ill thought out determination, as the NLRB continues to attempt to make itself “relevant” in an era when traditional unionization of American workers remains at or near all-time lows. Of course we may not know the answer to these questions for years to come.  The nature of the NLRB review process in an organizing context makes it likely that this issue will not come before the courts, where it is most likely to be resolved, for many years to come.

In a stunning and potential landmark decision, a Regional Director of the National Labor Relations Board has found that football players receiving grant-in-aid scholarships from Northwestern University (the University) are “employees” under the National Labor Relations Act.  In his decision released Wednesday afternoon, the Regional Director determined that “players receiving scholarships to perform football-related services for [the University] under a contract for hire in return for compensation are subject to [the University]’s control and are therefore employees within the meaning of the Act.”  Accordingly, the Regional Director ordered that an election be conducted among all football players receiving grant-in-aid scholarships who have not exhausted their playing eligibility for the University. In support of his decision, the Regional Director found that the players receive compensation for the athletic services they perform in the form of scholarships, which pay for the players’ tuition, fees, room, board, and books and can total as much as $76,000 per calendar year for up to five years.  Furthermore, the Regional Director found that the players are under the strict control of the University throughout the year.  The coaches determine the location, duration, and manner in which the players carry out their football-related activities; they monitor the players’ adherence to NCAA and team rules; and they control “nearly every aspect of the players’ private lives,” including their living arrangements, applications for outside employment, off-campus travel, social media posts, and communications with the media.  In contrast, the Regional Director held that “walk-ons do not meet the definition of ‘employee’ for the fundamental reason that they do not receive compensation for the athletic services that they perform.” The University has confirmed that it plans to appeal the decision to the full National Labor Relations Board in Washington, D.C.   If upheld, the decision has the potential to dramatically alter the world of big-time athletics in higher education as it would open the door for scholarship athletes at all private universities to unionize.  Indeed, the decision could have implications for scholarship students in a number of areas beyond athletics. The Union, College Athletes Players Association (CAPA), which has the financial backing of the United Steelworkers, is seeking, among other demands, financial coverage for former players with sports-related medical expenses and the creation of an educational trust fund to help former players graduate.

Following the lead of North Carolina last year, members of the Virginia legislature have  become the latest to propose legislation to provide students at public colleges and universities the right to attorney representation in on-campus disciplinary proceedings. With narrow exceptions generally arising only at public institutions (e.g., in circumstances where a student faces parallel criminal charges arising out of an incident giving rise to an on-campus proceeding), courts have almost uniformly held that students have no right to counsel during campus disciplinary proceedings.  Even in those circumstances where courts have mandated the presence of an attorney, the attorney has been restricted to providing advice to protect the interests of the student, rather than being permitted to perform a formal advocacy role in which he or she presents a defense on a student’s behalf. Like the 2013 North Carolina law after which it appears to have been modeled, the proposed Virginia legislation would change this equation drastically at public institutions. With limited exceptions for charges of academic dishonesty, any student who is accused of a violation punishable by a suspension of greater than 10 days or expulsion would have the right to be represented, at the student's expense, by a licensed attorney (or nonattorney advocate). If present, the attorney would be entitled to "fully participate" during the proceedings, presumably meaning that counsel would be entitled to present opening and closing arguments, cross-examine witnesses (either directly or through the hearing body), make objections, and generally function in a manner similar to defense counsel in a criminal court.  If this represents the start of a trend in higher education disciplinary law, it is a concerning one.  Colleges and universities do not design their disciplinary systems to function with all of the technicalities of a criminal process, and with good reasons. Campus disciplinary proceedings are designed to be educational in nature, and a core component of the learning experience is a student's ability to speak on his or her own behalf, to take responsibility for his or her behaviors, and to learn from them. Much of this will be lost in the event that students are permitted to have attorneys speak for them throughout the disciplinary process. Reasonable minds can, of course, differ as to whether the foregone educational benefit is outweighed by the need to protect accused students in the context of potentially career-altering additions to their records; however, attorney mandates have other, more significant and less debatable, adverse implications.  Ironically, proponents of these legislative efforts have characterized them as “leveling the playing field” between accused students and their institutions, but the presence of active defense counsel would almost certainly swing the balance in the opposite direction, making it both more difficult and more costly for colleges and universities to regulate conduct on their campuses.  Indeed, the presence of counsel for accused students may well lead an institution to retain counsel on behalf of the disciplinary panel and/or institutional representatives presenting charges, and to allow student complainants to retain private counsel, turning the entire process into a hypertechnical, confrontational and protracted legal proceeding. The potential costs to institutions, both financial and in terms of the functioning of their disciplinary processes, are not insignificant. It may be that the courts and regulatory authorities in jurisdictions adopting attorney mandates will bring some degree of reasonableness to the analysis; for example, it is possible to argue that the right for an attorney to “fully participate during any disciplinary procedure” means that attorneys can only participate to the extent that an institution’s process otherwise allows any advocate to function in the place of an accused student, and/or that institutions may have procedures that limit the role of counsel (e.g., by precluding cross-examination) provided that the procedural limitations are applied even-handedly.  However, this is far from clear, and appears to be contrary to the expectations of those who have sought to implement these reforms. Perhaps more troubling, a mandate to allow active attorney advocacy in on-campus proceedings raises the prospect of serious inequities in the disciplinary process.  For example, although the Virginia legislation (like the North Carolina legislation before it) permits the use of "non-attorney advocates," affluent students who are able to retain the highest quality (and correspondingly highest-priced) counsel may have a greater chance of successfully defending disciplinary proceedings and avoiding responsibility for their actions than will students from underprivileged backgrounds. Similarly, these requirements may have chilling effects on institutions’ ability to address allegations of sexual misconduct, where institutions are required to afford complainants rights equivalent to those granted to accused students. Although this may not translate into a requirement that institutions furnish counsel to complainants in such cases (as noted above, accused students are required to pay for their own counsel), many complainants may not have the financial wherewithal or inclination to retain counsel in such circumstances, so as to enable them to have their accounts presented as effectively as those of their alleged assailants or harassers.  They may also be understandably fearful of the prospect of being cross-examined by defense counsel (directly or, as is common, through the hearing body) in the manner that often proves traumatic in criminal processes. If this increases the reluctance to report sexual misconduct with which so many institutions already struggle, it will be a truly unfortunate byproduct of these legislative efforts to protect student rights. None of this is to say that accused students are not entitled to a process that is fundamentally fair when facing charges of misconduct; this has always been the law, and students sanctioned by institutions already have the right to seek judicial review of disciplinary determinations in most jurisdictions. Thus, colleges and universities are already accountable for their processes, and should of course take steps to ensure that their proceedings are conducted fairly and even-handedly. Moreover, if institutions are concerned that accused students need legal advice to protect their interests, they always have the option to design their procedures to permit (as many do) the presence of counsel to provide quiet advice to the accused.  However, “lawyering up” the entire process by requiring institutions to permit full and active advocacy by counsel would seem, on the whole, to be counterproductive.

As colleges and universities in New York know, new Regulations were recently adopted, effective December 31, 2013, amending the state’s Minimum Wage Orders, including the Minimum Wage Order commonly applicable to not-for-profit higher education institutions. These amendments reflect the statutory increase in New York’s minimum wage to $8.00 per hour, which is already in effect, as well as future scheduled raises in the state minimum wage to $8.75 per hour as of December 31, 2014, and to $9.00 per hour as of December 31, 2015. The relevant provisions of the above-referenced Minimum Wage Order apply to colleges and universities deemed to be “nonprofitmaking institutions.” This term includes:  “any corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual.” While this Minimum Wage Order generally applies the new $8.00 per hour minimum rate, it also continues to provide that bona-fide students working “in or for” such “nonprofitmaking institutions,” e.g., not-for-profit colleges and universities, are exempt from the definition of “employee.”  In other words, these students are exempt from the increased state minimum wage. The term “student” is specifically defined in the applicable Minimum Wage Order as “an individual who is enrolled in and regularly attends during the daytime a course of instruction leading to a degree, certificate or diploma, offered at an institution of learning, or who is completing residence requirements for a degree.”  Further, under this definition, such an individual continues to be a “student” even when school is not in session, so long as she was a student during the preceding semester. However, higher education institutions should remember that the Fair Labor Standards Act (“FLSA”) does not contain a comparable exemption and, at the present time, federal law independently imposes a minimum wage of $7.25 per hour for non-exempt employees.   Thus, hourly student employees must still generally be paid at this federal minimum wage rate for all hours worked, and at time-and-a-half of their “regular rate” for all hours worked over 40 in a workweek. At the same time, not all student “work” at higher education institutions constitutes an employment relationship subject to the FLSA and its requirements, although this distinction is not always easy to make.  Additionally, certain full-time students may be paid sub-minimum wages under the FLSA, but higher education institutions must obtain prior approval from the federal Wage & Hour Division. The bottom line is that colleges and universities should carefully examine their minimum wage practices, and practices with students who provide services to ensure compliance with both state and federal law.

The turn of the calendar to a new year provides an opportunity for New York colleges and universities to perform an early assessment of their compliance with Article 129-A of the New York State Education Law in anticipation of the need to furnish evidence of compliance to the New York State Education Department (NYSED) during the summer of 2014. By way of background, Article 129-A requires public and private colleges and universities in New York State to maintain institutional policies on a variety of subjects, including campus security and the maintenance of public order on campus; sexual assault, domestic violence and stalking prevention; campus crime reporting and statistics; investigation of violent felony offenses; bias related crime prevention; the marketing of credit cards on campus; and disclosure of fire safety standards in institutionally-owned or operated housing facilities. On or before July 1 of each year, institutions are required to certify to NYSED their compliance with the requirements of Article 129-A (i.e., that they have policies meeting the statutory requirements). However, in 2004 institutions were required, and every ten years thereafter are required, to submit actual copies of their policies as evidence of compliance.  Thus, New York institutions will be required to submit their policies to NYSED on or before July 1, 2014. In anticipation of this requirement, institutions may wish to perform a self-audit to confirm that the requisite policies are in place, and are suitable for filing.  Of course, institutions should be monitoring compliance in these areas on a continuous basis, but they may want to review the content of policies in greater detail (as opposed to confirming their mere existence) in anticipation of the public filing, so as not to be caught needing to make eleventh hour amendments to policies (or to adopt new policies) over the summer, when boards or others whose approval may be required are not readily available.

The status of graduate assistants under the National Labor Relations Act (“Act”) -- are they employees eligible to organize or students without employee status under the Labor Law -- has garnered considerable attention in recent years.  New York University (“NYU”) graduate assistants will, for the second time in recent years, be represented by a union and negotiate their terms and conditions of employment due to a neutrally supervised vote held under an agreement between NYU and the United Auto Workers (“UAW”).   Under that agreement, graduate, research, and teaching assistants at NYU have voted overwhelmingly (620 to 10) in favor of union representation by the UAW.  The election occurred after the UAW and NYU reached agreement in November under which NYU agreed to remain neutral, refrain from participating in the election, and bargain in good faith for a contract if a majority voted in favor of representation.  Under the same agreement, the UAW agreed to withdraw pending petitions for election before the National Labor Relations Board (“NLRB”). A unit of graduate assistants at NYU had previously voted in favor of representation in 2002 and the UAW had bargained a contract with NYU.  During that first contract, the NLRB decided the Brown University case, 342 NLRB 42 (2004), holding that certain graduate assistants were primarily students, not employees and therefore were not legally entitled to organize under the Act.  NYU withdrew recognition of the Union in response to the Brown decision.  In 2010, the UAW filed several petitions seeking to represent graduate assistants and providing a vehicle for the NLRB to revisit the Brown ruling.  The NLRB sought briefing from the parties and interested organizations concerning the employee status of graduate assistants.  Many felt that Brown was likely to be overturned by the NLRB appointed by the Obama administration. The agreement between NYU and the UAW resulted in the withdrawal of the NLRB proceeding.  The NLRB has issued an unpublished decision indicating that it is granting the Union’s request to withdraw and now considers the review of the Brown decision to be “moot.” Thus, NYU will enter into bargaining with the UAW for its graduate students.  The broader issue of whether graduate students are employees from the NLRB’s perspective will have to wait for a new test case before the Board.  In the interim, Brown remains governing law.