The National Labor Relations Board (the “Board” or “NLRB”) has issued notice that it will propose a new rule establishing 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” within the meaning of Section 2(3) of the National Labor Relations Act (the “Act”). The Board’s decision has potential for significant impact on the status of graduate student unions currently recognized at multiple private universities, as well groups seeking to organize. The Board’s new rule hopes to bring stability to a particular approach that has been reversed three times since 2000, while seeking to clarify that the Act only extends to relationships which are primarily economic in nature, and does not cover relationships which are essentially educational.

Student collective bargaining rights have been heavily debated for the past two decades, continually changing with the tides of each presidential administration. In 2000, the Board initially granted student workers at private universities the right to collectively bargain, ruling that those students were “employees” for purposes of the Act. In 2004, the Bush Administration Board changed course, stripping private university student workers of that right, indicating that student workers were not employees. In 2016 the Board changed course once again, ruling that graduate research students did have the right the collectively bargain. The 2016 ruling gave rise to several graduate student unions at private universities across the country. The new proposed rule will change the Board’s stance once again, but will make yet another reversal more difficult, since rule making will be required, rather than a decision in a case.

It is unclear whether this might presage future developments in other areas, particularly in regards to student athletes. In the past few years the Northwestern Football team attempted to organize; however, the Board rejected their petition holding they are not employees for purposes of the Act. We will keep you posted of any significant developments during the rule making phase.