On March 12, 2021, the National Labor Relations Board (Board) announced that it is withdrawing a rule proposed in September 2019 that would have excluded undergraduate and graduate students at private colleges and universities who perform services in connection with their studies from coverage under the National Labor Relations Act (Act). The proposed rule would have made these students ineligible to join or form a labor union or engage in collective bargaining. The period for public comment on the proposed rule closed on February 28, 2020, but the final rule was not issued before the new administration ordered a regulatory freeze on new rules.
Background on University Student-Employees
The Act does not define the employment status of students who perform duties in connection with their studies at institutions of higher education, such as graduate research and teaching assistants. For the last 20 years, the Board has flip-flopped (depending on the political party in the majority on the Board) on whether students at private universities may unionize. The proposed rule was intended to halt the pendulum swing and clarify, once and for all, that students at private universities do not have a right to unionize under the Act.
What this Means for Employers in Higher Education
While the Board stated that its withdrawal of the proposed rule stems from limited resources and competing priorities, comments made by Board Chair Lauren McFerran in connection with the announcement suggest that the Biden-era Board will take the position, which was taken by the Obama-era Board, that students who perform services in connection with their studies may organize under the Act. The Board's Republican majority will end in August 2021, when Member William Emanuel's term expires, and the change in the proposed student-employee rule is anticipated to be the first of many changes rolling back Trump-era Board action and returning to more employee-friendly decisions and rules.
Originally Published by Littler Mendelson, March 2021
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