September 20, 2019
Law360 (September 20, 2019, 8:49 AM EDT) — The National Labor Relations Board on Friday released a proposed rule that would block college teaching and research assistants from forming unions by declaring they don’t qualify as employees under federal labor law.
The board in a notice of proposed rulemaking said such student workers are not employees under the act because their roles are educational rather than economic, even though they are compensated. The National Labor Relations Act empowers workers to form unions and take concerted action against their employers, but conditions these protections on employee status.
“In the past 19 years, the board has changed its stance on this issue three times,” Chairman John Ring said in a statement on the rule. “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.”
Republicans Ring, Marvin Kaplan and Bill Emanuel approved the notice. Democrat Lauren McFerran dissented.
The proposed rule marks the latest in a series of flip-flops by the board as to whether students who pull double duty as teachers or researchers are employees under the NLRA. The board typically interprets the NLRA through case law, which can be changed far more easily than formal regulations when the board changes political hands.
Most recently, a Democratic board majority appointed by former President Barack Obama in 2016 said student assistants at Columbia University are employees because “they perform work, at the direction of the university, for which they are compensated.” That ruling overturned a 2004 decision by former president George W. Bush board appointees saying Brown University student assistants weren’t employees because their relationship to the school was “primarily educational.” The Brown ruling in turn reversed a Clinton-era decision letting New York University student assistants form a union.
Graduate students at several colleges sought to form unions in the wake of the board’s most recent decision, but their colleges have largely opposed these efforts, with the expectation that President Donald Trump’s appointees to the labor board would reverse the Columbia decision..
Rather than ask the NLRB to make their colleges come to the bargaining table, which would give the board a chance to reverse the decision, the students have pressured them outside the board process. But by opting to regulate, the board does not need an on-point case to shift its read of student assistants’ rights. And a rule will be harder for a future Democratic administration to reverse than a ruling, because regulation can generally only be undone by regulation, which takes months or years to develop.
This rule is one of a handful the NLRB has proposed or will soon issue with the aim of making a more permanent mark on federal labor law. This is a shift for the board, which rarely proposed rules under past administrations.
–Additional reporting by Matthew Bultman and Vin Gurrieri. Editing by Rebecca Flanagan.-
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