The Higher Ed Workplace Blog

CUPA-HR Submits Comments on NLRB’s Proposed Rule on Student Workers

On January 15, 2020, CUPA-HR, the American Council on Education (ACE), and other higher ed associations, filed comments in response to the National Labor Relations Board (NLRB)’s Notice of Proposed Rulemaking on student workers. The proposed rule essentially states that student workers at private institutions are not considered employees under the National Labor Relations Act (NLRA), and thus do not have a legally protected right to bargain collectively. The NLRA governs labor relations at private colleges and universities only, as state laws control these matters at public institutions. Some states provide students at public colleges and universities with a protected right to collectively bargain while others do not.

Student-Institution Relationships Are Primarily Educational

CUPA-HR’s comments support the Board’s rule and commend the agency for attempting to provide much-needed stability after nearly two decades of the Board going back and forth on its decisions on student status. The proposed rule states that “students who perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies are not ‘employees’” under the NLRA. The Board’s justification for this approach centers on the fact that the relationship these students have with their college or university is “primarily educational in nature,” while the NLRA only grants the Board jurisdiction over economic relationships. Therefore, the Board believes it does not have authority over the relationship between students and their higher ed institutions, and that attempting to insert itself into such a relationship will have harmful effects on the students’ education and higher ed institutions’ academic freedom.

CUPA-HR, ACE and the other comment signatories strongly believe the Board does not have jurisdiction over students, since their relationship with their college or university is primarily academic in nature. Students’ work obligations are frequently components of their academic curriculum or student aid. This work is designed to support and augment their education and is not conducted for the college or university’s benefit.

Furthermore, the principles of the NLRA and the processes of the Board are incompatible with the realities of the relationship between students and their higher ed institutions. The NLRA considers the economic relationship between an employee and an employer. It does not consider the consequences of imposing its processes on the academic setting; nor does it consider other federal laws and regulations governing the higher ed community, such as the Family Educational Rights and Privacy Act, and Title IX of the Education Amendments of 1972. The NLRA is often at odds with or entirely conflicts with these other laws and regulations.

Finally, by applying the NLRA to the student-institution relationship, colleges and universities could lose control over crucial academic matters, such as academic curriculum, who is accepted into the institution, and standards for advancement or graduation. The signatories argue that by introducing collective bargaining into the relationship between students and their college or university, the Board will be undermining institutions’ freedom to control these essential elements of the academic setting, as has already been seen in various examples highlighted in our comments of unionization campaigns on college campuses.

Proposed Rule Ends 20 Years of Conflicting Decisions

The question of employee status of students who are working in connection with their studies has befuddled the higher education community, students, and the Board for nearly two decades. While the Board first asserted jurisdiction over private colleges and universities 50 years ago, the Board never claimed authority over the relationship between students and their higher ed institutions. That changed in 2000, when the Board departed from its longstanding precedent in its New York University (NYU) decision in which the Board ruled for the first time that certain graduate assistants at the university were employees. In 2004, the Board returned to its longstanding precedent with its decision in Brown University, overturning NYU and once again recognizing that student assistants were not employees since their relationship with their university was “primarily an educational one.” That decision stood for 12 years. However, in 2016, the Board once again reversed course in its Columbia University decision, overruling Brown, and relegating students to employee status.

The Board’s changing positions on the issue has roughly tracked with which political party controls the agency. With each change in power, the Board has altered its position on students’ employee status, despite the Board not proving any material changes in the relationship between students and their colleges or universities. These changes have caused substantial uncertainty throughout the higher ed community, leaving it unable to determine its liability and responsibilities under the law.

In the Board’s press release on the proposed rule, Chairman John Ring clarified, “This rulemaking is intended to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law.”

Related resources:

HR and the Courts (December 2019)

Trump Administration Releases Fall 2019 Regulatory Agenda