On September 20, 2019 the National Labor Relations Board (“NLRB” or “Board”) proposed a rule which, if approved, would exclude graduate and undergraduate student workers, who perform services in connection with their studies, from the definition of “employee” under the National Labor Relations Act (“NLRA”), thus precluding them from forming unions or engaging in collective bargaining activities at private colleges and universities.

The proposed Board rule comes amid a seesaw of NLRB decisions on the issue of student workers. In a 2016 Board decision addressing whether student assistants at Columbia University are employees, the Board held that such student workers were employees with collective bargaining rights under the NLRA. Applying the common-law agency doctrine, the Board explained that because the student assistants “perform work, at the direction of the university, for which they are compensated,” they are “employees” under Section 2(3) of the NLRA, notwithstanding their additional educational relationship with Columbia University. In response, graduate students at other institutions, such as New York University, American University, and Brandeis University, organized and negotiated collective bargaining agreements with their universities. The 2016 Columbia University decision reversed a 2004 Brown University decision, whereby the Board held that graduate assistants have a primarily academic, not economic, relationship with their school, and therefore they should not qualify as statutory employees.

The recently proposed Board rule has taken a similar approach to the Brown University decision, thereby holding students who perform services at a private college or university related to their studies to be primarily students with a primarily educational relationship with their university, and therefore not statutory employees. The Board has explained that its proposed standard is more consistent with the purposes and policies of the NLRA, which governs economic relationships, as opposed to those “primarily educational in nature.”

Public comments are invited on all aspects of the proposed rule and should be submitted by November 22, 2019. The NLRB has also solicited public comments on whether students who work at a private college or university in a capacity unrelated to their studies qualify as an “employee” under the NLRA. If adopted in its proposed form, the rule would undercut a growing number of student unionization efforts. Though it would not impact existing contracts between student worker unions and universities, it would nevertheless give private institutions a clear basis to refuse to recognize student unions.