Michigan has become the first state to exclude intercollegiate student-athletes at its public universities from the definition of a “public employee,” and therefore, the right to bargain collectively through a union.

An amendment to Michigan’s Public Employee Relations Act signed by Governor Rick Snyder excludes from the definition of “public employee” (1) “a student participating in intercollegiate athletics on behalf of a [Michigan] public university”; (2) “a graduate student research assistant or [those serving] in an equivalent position”; and (3) “any individual whose position does to have sufficient indicia of an employer-employee relations using the 20-factor test announced by the [I]nternal [R]evenue [S]ervice.”

The action came in response to a decision by the Regional Director of the National Labor Relations Board in Chicago that the scholarship football players at Northwestern University were “employees” within the meaning of the National Labor Relations Act and therefore eligible to be represented by a labor union. (See NLRB Grants Review in Northwestern Case; Election to Be Held and Ballots Impounded.) The Northwestern decision is being reviewed by the five-member NLRB in Washington. A decision is expected at any time.

The state law has no applicability to student-athletes, graduate assistants and others attending private colleges and universities or to such individuals attending public universities in other states.