October 22, 2019

NLRB Proposes New Rule to Keep Working Graduate Students from Unionizing

A recently proposed rule by the National Labor Relations Board (NLRB) considers whether working graduate students and their universities hold a predominantly educational or economic relationship, and how said relationship affects their right to unionize.

The National Labor Relations Act (NLRA) allows workers to unionize and engage in protected concerted activities against their employers. For workers to be protected by the NLRA, they must fall within the statutory definition of employee.

On September 23, 2019, the NLRB published a proposed rule in the Federal Register to prevent students who perform any services for compensation from forming a union by declaring they are not employees under federal labor law. This would include all students, including graduate teaching assistants and research assistants. This proposed rule arises from the efforts of graduate students to form unions at several colleges and the opposition they have received from those institutions.

In its proposal, the NLRB states that the proposed rule is in line with the NLRA because services performed as a student relate to the student’s educational relationship with the college or university, not an economic one. The purpose of this rule is to bring stability to the field of labor law, as the NLRB has changed its position on this issue three times in the last two decades.

In its decision in New York University (NYU), 332 NLRB 1205 (2000), the NLRB held that certain university graduate students were statutory employees. Applying the common-law agency test, the NLRB concluded that these students fell within the statutory definition of employee and noted that the collective bargaining process was feasible in the university context. Four years later, the NLRB overruled NYU in Brown University, 342 NLRB 483 (2004). In Brown University, the NLRB held that the graduate students, teaching assistants and research assistants did not fall under the statutory definition of employee. The NLRB reasoned that these individuals have a predominantly academic relationship with the school and their job positions arise only because the individual is a student. In 2016, the NLRB changed positions again in Columbia University, 364 NLRB No. 90 (2016), overruling Brown University, reinstating NYU, and asserting its jurisdiction over colleges and universities, indicating that an employment relationship can still exist even though the employee is also a student.

The NLRB’s proposed rule shows that the common-law definition of employee is not conclusive, and the policy of collective bargaining is one that contemplates a primarily economic relationship between employer and employee. This type of relationship allows for a mechanism to resolve economic disputes arising out of the employment relationship.

Timeline for Comments

At this time, the NLRB ’s proposed rule is not final nor binding. Some considerations cited by the NLRB for proposing this rule include the idea that the primary purpose of student workers’ relationship to their institutions is educational in nature; the time students spend performing services for compensation is less than the time spent on their studies and coursework; and funds received for services are more like financial aid provided to help cover education expenses.

The NLRB welcomes any public comments addressing the proposed rule by December 16, 2019. Parties also have until December 30 to reply to comments made during the comment period, which the Board must consider before it issues a final rule. In addition, the NLRB also invites any comments on whether this proposed rule should exclude students who are employed at their educational institution in a capacity unrelated to their course of study from being considered “employees” under the NLRA.

The Board hopes to receive extensive feedback from the public, and that this feedback will bring stability to this area of law.

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