NLRB Attempt to Stabilize its Position on Student-Workers is Withdrawn; Consequences of the Board’s President-Appointment System.

By: Moxi Szodfridt

To protect the rights of employees and employers, Congress passed the National Labor Relations Act (“NLRA”) in 1935.[1] The Act created an independent federal agency tasked with protecting “the rights of private sector employees to join together with or without a union to improve their wages and working conditions” called the National Labor Relations Board (“Board”).[2] Members of the Board are appointed by the President and confirmed by the Senate to five-year terms.[3] Symptomatic of this appointment power and relatively short service term is a sitting President’s ability to wield a heavy influence over the policy determinations of the Board’s administrative proceedings.[4] As such, the Board’s priorities change from one administration to another with regular oscillation in determinations. One area of labor law that has fallen victim to the Board’s fondness for seesawing is the categorization of student-employees.[5]

Under Section 2(3) of the NLRA “employees” include “any employee and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise…”[6] The NLRA does not explicitly categorize student workers as employees covered under the Act.[7] Consequently, the Board’s position on student-employees has been an uncertain one since it first asserted jurisdiction over private colleges and universities in its 1970 Cornell University decision.[8]

Four years post the Cornell decision, the Board excluded teaching and research assistants from the NLRA’s coverage deeming these workers to be “primarily students” excepting them from bargaining units composed of school-faculty members.[9] Years later, the Board explicitly held that graduate student research assistants are not employees for purposes of the Act.[10] In 2000, the Board reversed itself in its New York University decision, holding graduate assistants to be employees within the meaning of Section 2(3) of the NLRA.[11] The Board expanded its New York University ruling in Brown University and Columbia University to include “externally-funded graduate research assistants and undergraduate student assistants” as employees under the Act.[12] The Board cited the plain policy of the Act in its decision; “to encourage the practice and procedure of collective bargaining” and to “protect the exercise by workers of full freedom of association, self-organization and designation of representatives of their own choosing.”[13]

Resultant of the student-worker classification flip-flopping, institutions of higher education, and the student workers themselves, have struggled with the lack of certainty as to whether student-workers are “employees” within the meaning of Section 2(3) of the NLRA.[14] The Board turned to rulemaking to resolve this classification catastrophe, publishing a Notice of Proposed Rulemaking in the Federal Register (“NPRM”).[15] Debuting in September 2019, the proposed rule exempts “undergraduate and graduate students who perform services for some form of financial compensation at a private college or university in connection with their studies from coverage as employees under Section 2(3) of the Act” from the Board’s jurisdiction.[16]

The policy behind this proposal stems from Board’s position under the Trump administration, stating that the “relationship undergraduate and graduate students have with their school is predominately educational, rather than economic.”[17] While the statutory definition of “employee” under the Act is sufficiently broad enough to cover student workers, the Board clinches on the predominately education facet of student-work positions to back its proposed exclusion.[18] To support its assertion, the Board supports its proposed rule with a number of “facts,” most notably: many graduate or research assistantships are prerequisites for graduation, students spend a limited amount of time on their research duties because their principal commitment is to academics, and the faculty role to student-workers is unlike the traditional employer/employee relationship which makes the situation ill-suited for collective bargaining.[19]

After the Board published its NPRM, a 60-day comment period commenced for the public to submit input on the proposed rule.[20] In response to the NPRM, “tens of thousands” of public comments poured into the Federal Register.[21] On March 12, 2021 the Board announced that it will published a Notice of Withdrawal of the student-worker NPRM on the 15th of March. The Board’s ambiguous announcement stated only that “[i]n light of competing agency priorities, the Board has determined to focus its time and resources on the adjudication of cases currently in progress.”[22]

This withdrawal effectively means that Columbia University standard, classifying student teachers and research assistants to be employees within the meaning of the Act will continue to be the controlling standard.[23] The Board’s decision to withdraw its NPRM follows the long-line of administrative un-doing of past opposing-administration doings. With the new democratic-appointees to the Board under President Biden, the decision to withdraw the student-worker NPRM is a shock to none, to say the least.


[1] National Labor Relations Act, 29 U.S.C.A. §§ 151 to 169 (West)

[2] Who We Are, nlrb,  https://www.nlrb.gov/about-nlrb/who-we-are (last visited Mar. 12, 2015)

[3] Id.

[4]  Susan K. Snyder & Barry R. Weingast, The American System of Shared Powers: The President, Congress and the NLRB, 16 L.J. Econ. & Org. 269, 273 – 276 (2000).

[5] Id. at 270.

[6] National Labor Relations Act, 29 U.S.C § 152(3) (2000).

[7] Id.

[8] Cornell Univ., 183 NLRB 329 (1970)

[9] Adelphi Univ., 195 NLRB 639, 640 (1972)

[10] NLRB v. Leland Stanford Jr. Univ., 715 F/2d 473 (9th Cir. 1983)

[11] New York Univ., 332 NLRB 1205 (2000)

[12] Brown Univ., 342 NLRB 483 (2004); Columbia Univ., 364 NLRB 90 2016)

[13] See generally,  29 U.S.C § 151 (2012) (recognizing that one of the main purposes of the NLRA is to encourage the practice and procedure of collective bargaining” and to “protect the exercise by workers of full freedom of association, self-organization and designation of representatives of their own choosing”).

[14] Michael R. Bertoncini et. al., Labor Board Withdraws Proposed Rule Excluding Student Workers from NLRA Coverage, The Nat. L. R. (Mar. 15, 2021), https://www.natlawreview.com/article/labor-board-withdraws-proposed-rule-excluding-student-workers-nlra-coverage

[15] Jurisdiction-Nonemployee Status of University and College Students Working in Connection with their Studies, 84 FR 49691 (proposed Sept. 23, 2019) (to be codified at 29 C.F.R. pt. 103).

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Paul Salvatore et. al., NLRB Withdraws Proposed Rule Concerning Employee-Status of Student Teachers and Research Assistants, Proskaur, L. relations Update. (Mar. 12, 2021), https://www.laborrelationsupdate.com/nlrb/breaking-nlrb-withdraws-proposed-rule-concerning-employee-status-of-student-teachers-and-research-assistants/

[22] Id.

[23] Id. (“With this withdrawal of the proposed student assistant rule, the Board’s standard on student-employee status as articulated in its 2016 Columbia University decision, finding that student teachers and research assistants are “employees” under the Act, will remain the controlling standard”). 

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