In a significant development for private colleges and universities, the National Labor Relations Board (NLRB) announced that it intends to propose rules that would establish a “standard for determining whether students who perform services at private colleges or universities in connection with their studies are ‘employees’” under the National Labor Relations Act (NLRA). The NLRB currently projects that the proposed rules will be issued in September 2019. It is widely expected that the rules, which will be proposed by the Republican-controlled Board, will make it more difficult for students to be classified as “employees” for the purpose of forming unions.

The NLRB has rarely engaged in substantive rulemaking. Instead, the Board addresses most issues through adjudication, by issuing decisions based on the cases that come before it. Board members are appointed by the president, with consent of the Senate, and control of the NLRB can change with each election. As a result, decisions on important issues such as student organizing are sometimes overturned repeatedly. During the past two decades, Democrat-controlled Boards (in 2000 and 2016) have held that students have the right to unionize, while a Republican-controlled Board (in 2004) held that students do not have the right to unionize.

The most recent standard for determining whether a student is an “employee” for collective bargaining purposes was established by the Obama-era Board in 2016. In its Columbia University decision, the Board found that both graduate and undergraduate teaching assistants, as well as graduate research assistants, are statutory employees covered by the NLRA and therefore could seek to form a union. In reaching this conclusion, the Board reasoned that the students were common law employees of the university, and that the Board had the authority to treat students “as statutory employees, where they perform work, at the direction of the university, for which they are compensated.”

Following the election of President Trump, unions have intentionally chosen not to pursue cases where a college or university has refused to recognize a student union, so as to avoid offering the Trump-era Board the opportunity to reverse the Columbia University holding. Engaging in the formal rulemaking process, however, will allow the Board to propose a clear standard, which will likely reverse the holding of Columbia University, without waiting for a specific case to come before it. Additionally, a formal rulemaking is likely less susceptible to being reversed when future Board members are appointed.

While it is reasonable to expect that the new rules will involve a multifactor analysis for determining whether a student is a statutory employee under the NLRA, it would be premature to speculate further as to what might be included. But what should private colleges and universities do in the meantime? We have a few suggestions:

  • Talk to your undergraduate and graduate student workers. What are their needs and concerns? Are those needs and concerns being addressed in a timely manner? Often, the best way for an institution to prevent a union from forming on campus is by fostering an environment where student workers do not feel that a union is necessary.

  • Comment on the proposed rules. When the proposed new rules governing student workers are published later this year, participate in the notice and comment rulemaking process by expressing your institution’s views on the proposed regulations. Members of the Pepper Hamilton Higher Education Practice Group regularly assist universities and colleges in commenting on proposed rules.