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The NLRB Opens the Door for Student Unionization (Again)

Posted: March 16, 2021

The roller coaster ride for private colleges and universities seeking a final determination on whether student workers—including graduate assistants—have the right to unionize may not be over yet.

Over the last 20 years, the National Labor Relations Board reversed itself multiple times about the employee status of student workers, depending on which political party held the majority of Board members.  More recently, though, it appeared as if these shifts would cease when the Board initiated action to address the issue via administrative rulemaking. That occurred on September 23, 2019, when the Board published a Notice of Proposed Rulemaking (NPRM) to amend the National Labor Relations Act to state that, “students who perform any services, including, but not limited to, teaching or research assistance, at a private college or university in connection with their undergraduate or graduate studies are not employees within the meaning [] of the Act.”  There was no movement on the proposed rule following publication.

The proposed rule, and the finality that it offered, are no more, however.  On March 12, 2021, the Board withdrew the proposed rule.  The Board couched the withdrawal as an effort to “focus its limited resources on competing Agency priorities[.]”  The move is not surprising given that Democratic administrations have been more favorable to student unionization.  The Board had a majority Democrat appointees at the time of its 2000 New York University decision holding that certain student workers were statutory employees allowed to organize.  The Board overruled its NYU ruling in the Brown University decision in 2004, with a Republican majority.  The most recent change occurred in the 2016 Columbia University decision, when a Democrat-majority Board reinstated the NYU decision and, for the first time, held that both graduate and undergraduate assistants had the right to unionize.  Unsurprisingly, the NPRM was issued in 2019, by a Board majority comprised of Trump administration appointees.  With the withdrawal of the NPRM, the 2016 Columbia University decision remains the law for private institutions of higher education (public colleges and universities are not covered by the NLRA).

Private colleges and universities should anticipate increased unionization efforts among its student workers in light of the Board’s decision.  If you have any questions about the Board’s decision, or if you seek assistance regarding potential unionization efforts by your graduate or undergraduate student workers, please contact Dan Altchek, Carolyn Pellegrini, or your regular Saul Ewing Arnstein & Lehr, LLP attorney.