What You Need to Know About the NLRB’s Proposed Rule Blocking Student Organizing

The seemingly never-ending debate over private sector college- and university-student employment status continues. On Friday, September 20, the National Labor Relations Board (NLRB) announced its intent to propose a rule addressing the definition of “employee” under the National Labor Relations Act as it pertains to undergraduate and graduate teaching and research assistants. True to its word, the proposed rule was published this Monday in the Federal Register. The following addresses the essential points for college and university officials regarding this proposed rule.

The History

The NLRB has made a series of reversals on the employment status and organizing rights of undergraduate and graduate teaching and research assistants in recent years. In 2004, the Bush-era NLRB held that student assistants at Brown University were not employees under the NLRA, reversing a 2000 decision of the Clinton-era NLRB finding that graduate students at New York University were, in fact, employees entitled to organize under the NLRA. In 2016, the Brown University decision was overturned during the Obama administration, when the NLRB determined that student assistants at Columbia University were employees under the NLRA.

What is Proposed?

The NLRB is seeking public comment regarding whether students who perform services in connection with their studies at private colleges and universities are “employees” within the meaning of the NLRA. In the Board’s view, these students are not “employees” under the NLRA. Practically speaking, the impact of this rule would prohibit undergraduate and graduate student teaching and research assistants at private colleges and universities from unionizing.

Present Motivations

The NLRB has proposed to address this issue through rulemaking rather than adjudication primarily because it finds that the informal “notice-and-comment” rulemaking provides the opportunity for broader public input and consideration of the issue in a much more developed factual record than the record that might exist in a case involving a single private sector college or university. An administrative rule would bind the NLRB under any administration as long as it remained in effect and would be far less subject to the potential reversal presented by NLRB opinions.

How Can Private Sector Colleges and Universities Make Their Voices Heard?

The NLRB’s Notice of Proposed Rulemaking encourages public comment. Interested parties may submit comments within 60 days of this Monday, September 23, either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001. Because of the potential long-standing impact of the proposed rule, colleges and universities are highly encouraged to weigh in on the rule during this comment period.

Should you have any questions about the proposed rule or wish to share concerns or input, please feel free to contact any Franczek higher education attorney. We will be sure to keep you updated with developments on this proposed rule.