The National Labor Relations Board (NLRB or “the Board”) proposes to issue a regulation that would declare students (including, but not limited to, graduate students who teach undergraduates or assist regular faculty on research projects) who perform any services for compensation at a private college or university in connection with their studies, not to be “employees” within the meaning of the National Labor Relations Act. If finalized and put into effect, the regulation would preclude the NLRB from exercising jurisdiction to afford those students protections such as enforcement of collective bargaining and unionization rights.  Comments on the proposed regulation must be received by the NLRB no later than 11:59 PM Eastern Time on February 28, 2020.                                                                           (*Note: The Comment Period for this proposed rulemaking has been reopened and extended twice.  If you choose to review the original Notice of Proposed Rulemaking, do not be confused by that document internally identifying a comment due date in November of last year. The new due date of February 28 was announced on February 4, 2020.)   

The Basics:
  • The National Labor Relations Board is an independent federal agency empowered by the National Labor Relations Act (NLRA) to safeguard employees’ rights to organize and to determine whether to have unions serve as their bargaining representative.
  • The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. The Board investigates charges of violations of employee rights under the NLRA, facilitates settlements of disputes between employees and employers, adjudicates cases, and enforces its orders, as necessary, through the courts.
  • The NLRB’s jurisdiction extends only to protecting the rights of private sector “employees” as defined by Section 2(3) of the NLRA, referred to as “statutory employees.”
  • NLRB jurisdiction does not extend to employer-employee relationships in public colleges and universities, because the rights of public employees (including employees of public institutions like State colleges and universities) are defined and enforced under State labor laws,
  • Section 2(3) of the NLRA provides that: “the term `employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter [of the Act] explicitly states otherwise . . . .” Thus, this statutory definition of “employee” neither expressly includes nor excludes students who perform services at a college or university in connection with their studies.
  • In both private and public institutions of higher education, students commonly perform services for compensation, often by assisting regular faculty in teaching and research activities connected with the students’ academic areas of study.
  • Graduate students at universities, in particular, are often expected to teach or supervise undergraduates, or participate in research projects connected with their graduate programs.  Compensation of students for such activities is characteristically low, often consisting of a relatively small stipend and generally far from constituting a living wage.  At the same time, the demands of graduate program studies combined with the work required of graduate students in support of university programs and activities rarely leave sufficient time for those students to engage in other significant, gainful employment.
  • At many universities, effective conduct of undergraduate courses of study and/or other faculty projects and activities are substantially dependent on graduate student labor supplementing the work of regular faculty.
  • Through a succession of adjudicatory decisions dating from the 1970s, the NLRB has changed it’s position on the employee status of students numerous times. It has reversed itself on the issue three times over the course of just the last decade.
  • Most recently, in a 2016 case involving Columbia University, the NLRB decided that it not only had jurisdiction over certain university graduate student assistants at private colleges and universities, but that its jurisdiction extended to externally-funded graduate research assistants and undergraduate university student assistants as well.
  • The proposed regulation, by withdrawing employee status and NLRB protection of collective bargaining rights from graduate students at private universities, would potentially lead to the reversal of progress that has been made in recent years by graduate student unions at many educational institutions in gaining fairer treatment and better terms and conditions of employment for their members.
Summary of the Proposed Regulation:

The proposed new regulations would provide as follows:  “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 Act.”

The NLRB’s Justification for its Proposed Rulemaking:

The NLRB explains that its rationale for the proposed new rule is founded on two underlying conclusions. The first is that the statute creating the Board’s jurisdiction (the NLRA)  “contemplates a primarily economic relationship between employer and employee, and provides a mechanism for resolving economic disputes that arise in that relationship.” The second is that  “students who perform services at a private college or university related to their studies” have a “primarily educational, not economic, relationship with their university,” and therefore are not “employees” as contemplated by the NLRA even if they are employed by the university in the sense of receiving compensation for performing work.

The Board also offers several rationales for its proposal to issue a regulation resolving the issue, instead of proceeding through adjudication of particular cases.  Among them is the point that the rulemaking process provides opportunity for broader public input than case adjudication; and, because it does not depend on participation and argument by the particular parties in a specific case, cannot be mooted by developments in a pending case.  Finally, the Board states a belief that rulemaking will enable students, unions, and private colleges and universities to plan their affairs with greater predictability and certainty than has existed during the recent history of adjudicatory oscillation.

Additional Information and Resources:

If put into effect, the new rule proposed by the NLRB would roll back the Board’s position — and its capacity to protect employee rights of graduate students, and other students who work for and are compensated by the schools at which they study — to the status quo of the 1970sThe Board’s Notice of Proposed Rulemaking sets out a detailed explanation of the history of the issue through a series of “oscillating” Board decisions, as well as of the current Board’s approach to the matter; and you may wish to read that Notice in its entirety.  Included in the Notice, moreover, is an excerpt from the views of a dissenting member of the Board, that makes numerous points worthy of consideration.  Among other points, the dissenter (Lauren McFerran) takes issue with many of the factual premises relied on by the majority of the Board, and argues that the present rulemaking proposal “seems to disregard the genuine difficulties faced—whether working long hours and juggling research and coursework, or struggling to afford health care and child care—by student employees, and the obvious fact that they might benefit by exercising their rights under the National Labor Relations Act. ”

Other online resources that you may wish to review for additional information, opinions, and perspectives on the NLRB’s proposed rulemaking include reports in the New York Times and the National Law Review, as well as the Chicago Maroon and Boston College’s independent newspaper, The Heights.  You may also wish to read an article about the NLRB proposal that appeared in Science Magazine,  and a more general article on the topic of graduate student unions that was published in 2017 and can be accessed on the website of the American Psychological Association.  Additionally, you may find it interesting or instructive to read an article that appeared in the publication Inside Higher Education in 2016, when the Board decided the Columbia University case that the proposed new regulation would effectively reverse.

If You are Ready to Comment:

If you are ready to comment on the NLRB’s proposed new regulation, the easiest way to do so is to go to the Comment Page for this topic on the Government’s eRulemkaing website, type you comments into the box provided for that purpose, and follow the other instructions for comments submission that appear on the page.

Alternatively, you can send comments in letter form by mail or hand delivery to: Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. (If using either of these delivery methods, however, you should be aware that security precautions can lead to delays in U.S. mail delivery. If you send comments by mail or hand delivery, the Board recommends that you confirm receipt of your delivered comments by contacting (202) 273-1940.  Individuals with hearing impairments may call 1-866-315-6572 (TTY/TDD).)

All comments, irrespective of the delivery method utilized, must be received by the NLRB no later than 11:59 PM Eastern Time on February 28, 2020, in order to be considered.