The Higher Ed Workplace Blog

NLRB Withdraws Proposed Rule on Student Workers

On March 12, the National Labor Relations Board (NLRB) announced it would be withdrawing its 2019 Notice of Proposed Rulemaking (proposed rule) addressing the extent to which students who perform services for private higher education institutions are considered employees under the National Labor Relations Act (NLRA). The official Notice of Withdrawal will be published in the Federal Register on March 15.

The test for determining when a student is primarily an employee, with rights to collectively bargain, or primarily a student and thus not entitled to NLRA protections, has been debated and reversed back and forth dependent on Democrat or Republican control of the NLRB. Many expected a Republican-majority NLRB to reverse the 2016 ruling in Columbia University that said graduate students and certain undergraduates are employees under the NLRA; however, unions organizing students avoided bringing matters before the Board, preventing the Trump NLRB from reversing or limiting Columbia.

As such, the NLRB decided to address the issue via rulemaking and published a proposed rule in September 2019, which essentially stated that student workers at private institutions are not considered employees under the NLRA and therefore do not have a legally protected right to bargain collectively.

While CUPA-HR and ACE filed comments in support of the proposed rule, there were not many comments filed by other institution representatives supporting the proposed changes.


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