On September 20, 2019, the NLRB issued a notice of proposed rulemaking to exclude undergraduate and graduate students who perform paid work for private colleges and universities in connection with their studies from the definition of employee under the National Labor Relations Act. The proposed rule would prevent undergraduate and graduate teaching assistants from unionizing or collectively organizing.

The NLRB reasoned in the notice of proposed rulemaking that undergraduate and graduate students—though they are often paid for their work as teaching assistants—had a “primarily educational, not economic, relationship with their university” and therefore they were not traditional employees under the Act. The NLRB noted, for example, that the teaching assistants often perform this work as part of their academic program and that they typically receive a stipend or other flat dollar amount regardless of how many hours they worked—which are different from traditional indications or employment. The NLRB also stated that the proposed rule would “protect traditional academic freedoms” by exempting those topics from collective bargaining and would keep the NLRB out of academic affairs.

The NLRB has flip-flopped on this issue three different times over the last twenty years. This NLRB’s current effort, however, marks a new attempt by the Board to enshrine this holding in a final rule, which will be harder to overturn by a future Board appointed under a different presidential administration.

This is not the only proposed rulemaking issued by the current NLRB. As we have previously discussed, the current Board has issued two other notices of proposed rulemaking on joint employer and changes to union election rules. The Board’s focus on rulemaking reflects a desire by the current Board to leave its mark on labor law long after the political tides change.