Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On January 28, 2020, the NLRB announced an extension of time to February 28, 2020 to file responses to initial comments on its proposed rule.
On September 20, 2019, the National Labor Relations Board (Board) issued a proposed rule that would exclude from the National Labor Relations Act (Act) undergraduate and graduate students at private colleges and universities who perform services in connection with their studies. Under the proposal, these students would no longer be able to join or form a labor union or engage in collective bargaining.
Background on University Student-Employees
The Act does not define the employment status of students who perform duties in connection with their studies at institutions of higher education, such as graduate research and teaching assistants. The Board’s history regarding student workers is long and turbulent. From 1974 to 2000, the Board held that graduate student research assistants were not employees under the Act. In 2000, the Board reversed itself and held that certain graduate student assistants were statutory employees. Four years later, the Board reversed course again and reasoned that graduate student teaching assistants, research assistants, and proctors were not employees under the Act. Finally, and most recently, in 2016 the Board took an expansive view of the Act and found that both externally funded graduate research assistants and undergraduate university students were entitled to protection as employees under the Act.1
What the New Proposed Rule Would Do
Under the proposed rule, students who perform services at a private college or university in connection to their studies would be held to be students with a primarily educational, not economic, relationship with their university, and therefore not statutory employees. The Board seeks to revise the current precedent that allows these students to join or form a union, and to engage in economic weapons of labor such as picketing and strike activity.
In its proposal, the Board recognized that students who assist faculty members with teaching or research are primarily engaged in a student-teacher relationship with their university and not an employer-employee relationship. For example, students engage in teaching and research to further their education and gain vital knowledge of their discipline and experience. The Board recognized that these duties are often a requirement of obtaining an educational degree. The Board noted that students typically receive stipends and funding regardless of the amount of time spent researching or teaching, and only during the period in which they are enrolled as students.
The Board claims that its proposed rule will advance the important policy of protecting traditional academic freedoms, including free speech rights in the classroom.2 Under current precedent, unions representing university students can collectively bargain over course content and length, class size and location, who, what and where to teach or research, service responsibilities and standards for advancement and graduation. The proposed rule would protect these matters that have traditionally been in the domain of academic decision-making.
What this Means for Employers in Higher Education
For the last 20 years, the Board has issued shifting decisions on the question of whether students at private universities can unionize. This has created uncertainty for university administrators, who could never be sure if the relationship with their students is one of an educational or employment nature. If the rule is enacted as proposed, it will provide much-needed certainty.
The proposed rule was published in the September 23, 2019 edition of the Federal Register. The Board will accept comments for 60 days, or until November 22, 2019. Comments can be submitted by anyone seeking to have their voice heard on the issue. The Board will also permit parties to submit replies to comments. After the Board receives and reviews the comments and replies, it will issue a final rule.
1 See Walter C. Hunter, NLRB Rules that Student Assistants Can Unionize; Debate May Now Shift to Whether They Should, Littler Insight (Aug. 25, 2016).
2 See NLRB, Press Release, NLRB Proposes Rulemaking Concerning Students (Sept. 20, 2019).