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NLRB Withdraws Proposed Rule Affecting Student Employees at Colleges and Universities in New Jersey and Nationwide

Under the National Labor Relations Act (NLRA), employers may not interfere with or restrain New Jersey employee activities or those occurring elsewhere in the country that involve self-organizing for the purpose of engaging in collective bargaining. Employees may join an existing labor union or form one of their own without retaliation from their employers. In order for the NLRA’s protections to apply, a worker must be an “employee” within the statute’s meaning. In 2016, National Labor Relations Board (NLRB) ruled that student employees at private colleges and universities in New Jersey and around the country are “employees” under the NLRA. A proposed rule first published in 2019 would have changed the definition to exclude student workers. The NLRB withdrew the proposed rule in March 2021, so the 2016 ruling remains in effect.

Section 2(3) of the NLRA, codified at 29 U.S.C. § 152(3), offers a rather circular definition of “employee.” It does not state what an employee is. Instead, it provides that an individual is not excluded from being an “employee” for various reasons, such as if they lost their job due to an “unfair labor practice” or “current labor dispute.” An NLRB regulation adopted in 1970, 29 C.F.R. § 103.1, states that the NLRB may assert jurisdiction over claims involving private colleges and universities with at least $1 million in gross annual revenue.

The NLRB has ruled several times since 1970 on the question of whether students who work for the colleges and universities they attend should be considered “employees” under the NLRA. For thirty years, it excluded student workers from the definition of “employee,” but in 2000 it ruled that graduate student assistants should be included. It reversed its own decision in 2004, finding that graduate student assistants were students before they were employees. In 2016, it not only reversed its 2004 decision, but also expanded the definition to include both graduate and undergraduate student assistants.

In its 2016 decision, the NLRB cited the common law of agency in finding that student assistants are “employees” for the purposes of the NLRA. Three years later, the NLRB issued the proposed rule that would have specifically excluded student assistants from the definition of “employee.” It stated the view that the NLRA does not apply to “individuals without a sufficient economic relationship to an employer.” 84 Fed. Reg. 49693 (Sep. 23, 2019).

Since students’ “principal time commitment is focused on their coursework and studies,” id. at 49694, the NLRB argued that student assistants have more of an educational relationship to their schools than an economic one. It proposed adding a new subsection to 29 C.F.R. § 103.1 specifically stating that students providing services like “teaching or research assistance” at a college or university are not “employees” under the NLRA. Id. at 49699.

On March 15, 2021, the NLRB published a notice in the Federal Register stating that it was withdrawing the proposed rule. It did not provide an explanation for why. This is good news for undergraduate and graduate student assistants in New Jersey.

The knowledgeable and skilled employment lawyers at the Resnick Law Group advocate for New Jersey and New York workers. We represent clients in claims for unlawful employment practices under federal and state law. To schedule a confidential consultation to see how we can help you, please contact us today online, at 973-781-1204, or 646-867-7997.

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