After publishing the Notice of Proposed Rulemaking over a year ago, followed by tens of thousands of public comments and many months of anticipating the final rule, the NLRB announced today that it will publish a Notice of Withdrawal of the proposed student assistant rule. Under the proposed rule, students at private colleges and universities who perform services, including teaching and research, in connection with their studies for compensation would have been exempted from the NLRB's jurisdiction and definitively not "employees" as defined by Section 2(3) of the NLRA. As we previously reported here and here, the rule would have helped to bring certainty to an area of labor law that has seen regular oscillation since the 1970s, with the NLRB changing its position on the employee-status of student workers three times over the years.
The Board's short Notice of Withdrawal did not provide a detailed explanation for its decision, stating only that, "[i]n light of competing agency priorities, the Board has determined to focus its time and resources on the adjudication of cases currently in progress." The Notice stated that the Board is withdrawing the proposed rule in an attempt to effectively allocate the Board's limited resources. The Notice of Withdrawal will be published in the Federal Register on March 15, 2021.
With this withdrawal of the proposed student assistant rule, the Board's standard on student-employee status as articulated in its 2016 Columbia University decision, finding that student teachers and research assistants are "employees" under the Act, will remain the controlling standard. We anticipate that this will lead to another wave of union organizing in higher education. As always, we will be closely monitoring the Board as it continues to shake up national labor policy from the last four years.
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