Today, the National Labor Relations Board (NLRB) released a proposed rule that would remove graduate and undergraduate students who perform work for pay in conjunction with their academic studies from the definition of an “employee” who is eligible to unionize under Section 2(3) of the National Labor Relations Act (NLRA). The rule is subject to public comment for a period of 60 days before it can be issued in final form.

This move could put an end to the NLRB’s 20-year history of flip-flopping on the issue of student workers. The most recent standard for determining whether a student is an “employee” for collective bargaining purposes was established under the Obama-era NLRB in 2016. In Columbia University, the NLRB held that student teaching assistants and graduate research assistants are statutory employees under the NLRA. This decision reversed a 2004 decision involving Brown University, which, in turn, had reversed a 2000 decision involving New York University. In the 2004 Brown decision, the NLRB held that graduate assistants had a primarily academic, not economic, relationship with their universities, putting them outside the definition of “employee.”

After the Columbia decision, unions began organizing on college and university campuses nationwide. Many colleges and universities opposed these efforts, creating a pipeline of cases that could have given the Republican-controlled NLRB the opportunity to reverse the Columbia decision. To prevent this, unions withdrew their representation petitions, focusing on public relations and other efforts to persuade university administrations to voluntarily recognize and bargain with graduate student unions.

In the absence of a case before it on which to reverse Columbia, the NLRB has instead turned to rulemaking to solidify its opinion on the status of student workers. In addition to declaring that students whose work for their universities is related to their studies are not employees, the proposed rule seeks comments on whether students whose work is not so related should also be excluded because of the “very tenuous secondary interest that these students have in their part-time employment.”

A final rule is unlikely before Spring 2020 at the earliest. Furthermore, any rule is likely to face a legal challenge and would be subject to congressional scrutiny under the Congressional Review Act.

By relying on rulemaking rather than waiting for a case to come before it, the NLRB will make it more difficult for a future administration to change its approach to student worker classification. Unlike case holdings, which can be overturned by future decisions, any changes to final rules can only be accomplished by the passage of another regulation, a process which is more arduous and time-consuming.

Ballard Spahr’s Labor and Employment Group regularly represents private colleges and universities in labor matters, and has extensive experience with graduate student organizing.


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