On September 23, 2019, the National Labor Relations Board (NLRB) issued a proposed rule that would address whether college and university students who work for their schools can join unions. This rulemaking is a new approach to resolving a labor law question that has not had a consistent answer in recent decades. The proposed rule would enable institutions of higher education to keep their students out of unions.

Are Students Employees?

Many students hold jobs with their schools. For example, many graduate students serve as teaching assistants. The students often receive compensation for this work, whether direct compensation or credit toward their education costs.

The question of interest under the National Labor Relations Act (NLRA) is whether these students qualify as “employees” who have the right to form or join a union. Specifically, that is, a union that would negotiate on their behalf with the school over the terms and conditions of their employment.

This question has even come up in recent years regarding college football players. Should they be able to unionize because they receive a scholarship to play football?

(Note: The NLRB only has jurisdiction over private, non-governmental employers. Accordingly, public colleges and universities are outside its jurisdiction. However, the many private schools in the country are within its purview.)

Historical Approach

For many years, the NLRB has interpreted the NLRA primarily through adjudicating cases. It rarely used formal rulemaking to establish legally binding interpretations of the law. The Board’s adjudicative approach has increasingly produced a back-and-forth pendulum on many contentious issues. As a result, the labor law’s protections depend more and more on which party controls the NLRB.

In 1974, the NLRB ruled in a case involving Stanford University that graduate student research assistants are not “employees”. Instead, the Board ruled, they were “primarily students”. This decision kept college students out of unions for more than 25 years.

Then, in 2000, the NLRB held for the first time that certain New York University graduate students were employees under the NLRA. That conclusion was reversed, however, just 4 years later in a case involving Brown University.

Most recently, the NLRB went back in the direction of its NYU decision, and beyond. In 2016, the Board ruled that both graduate and undergraduate students at Columbia University could qualify for the NLRA’s protections as employees, even if their positions were externally funded.

Proposed Rule to Exclude Students from Unions

Seeking to stop the bouncing ball, the current NLRB has shifted toward rulemaking on significant labor policy issues. On the student-employee issue, the Republican Board majority takes a position that would keep students out of unions. In other words, the NLRB would not assert jurisdiction over them under the NLRA.

As an exception to standard jurisdiction over private colleges and universities, the proposed rule provides:

“Students who perform any services, including, but not limited to, teaching or research assistance, at a private college or university in connection with their undergraduate or graduate studies are not employees within the meaning of Section 2(3) of the [NLRA].”

Comment Period

As required under federal law, the NLRB has allowed time for the public to comment on the proposed rule.

Interested parties can file comments up until December 16, 2019. In addition, comments responding to other comments can be filed until December 30, 2019.

Given these deadlines, the NLRB will not be able to issue a final rule this year. However, it is likely there will be a final rule that will keep college and university students out of unions beginning in 2020.

What This Means for Employers

If you work for a private college or university, the potential impact is somewhat apparent . . . at least in the short term. With this change, students who work for the school will not have rights under the NLRA to engage in collective activity for their mutual aid and protection. They will not be able to join unions if the employer objects. But, if the political tides shift in Washington, the rule could be eliminated or revised in the future.

For other private employers, this signals a trend toward pro-employer rulemaking by the NLRB. Generally, this is a positive sign of greater leeway to run your business. But, again, the trend could be shortlived. Employers will continue to be at the mercy of the party that controls the NLRB–generally, the one that holds the Presidency. So, you can never get too comfortable in your understanding of the NLRA’s impact on your workplace.

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