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NLRB proposing to reverse course on student status, again

Undergraduate and graduate students at private colleges and universities who perform services for financial compensation in connection with their studies would not be entitled to collective bargaining rights pursuant to federal labor law under a rule recently proposed by the National Labor Relations Board.

Adoption of the rule would mark yet another change in position by the NLRB on the status of college students.

“In the past 19 years, the Board has changed its stance on this issue three times,” NLRB Chairman John F. Ring said in a statement accompanying the board’s announcement. “This rulemaking is intended to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law.”

The proposed rule would establish that “students who perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies are not ‘employees’ within the meaning of Section 2(3) of the [National Labor Relations] Act.”

The proposed rule effectively reinstates the NLRB’s position in a 2004 decision involving Brown University while reversing course from a 2016 decision involving students at Columbia University.

In Brown University, the NLRB held that that graduate student teaching assistants, research assistants, and proctors in a petitioned-for bargaining unit were not statutory employees.

On the other hand, in Columbia University, the board determined that an employment relationship can exist under the NLRA between a private college or university and its employee, even when the employee is simultaneously a student. In fact, the board in Columbia University extended precedent existing prior to Brown University to recognize collective bargaining rights to both externally funded graduate research assistants and undergraduate university student assistants.

Chairman Ring was joined by Board Members Marvin E. Kaplan and William J. Emanuel in issuing the proposed rulemaking. Board Member Lauren McFerran dissented.

“In the wake of [Columbia University] student employees across the country have been seeking — and often winning — better working conditions: Better pay, better health insurance, better child care, and more,” wrote McFerran. “Today, the majority proposes to reverse this progress, in the name of preserving higher education.”

The board published the proposed rule for comment in the Federal Register Sept. 23. The public has 60 days from the date of publication to comment on the proposed rule.

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