Labor & Employment Law Daily NLRB proposed rule would mean teaching and research assistants are not statutory employees
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Wednesday, September 25, 2019

NLRB proposed rule would mean teaching and research assistants are not statutory employees

By Pamela Wolf, J.D.

Under the proposal, students who perform any services for compensation at a private college or university in connection with their studies would not be “employees” within the meaning of NLRA Section 2(3).

The National Labor Relations Board has proposed a regulation to establish that students who perform any services for compensation, including 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 proposed rule would overrule existing precedent and return to the law as it existed shortly after the Board first asserted jurisdiction over private colleges and universities in the early 1970s to 2000 and, with brief exceptions, for most of the time since then, according to the notice slated for publication in the Federal Register September 23.

Providing stability. The proposed standard “is consistent with the purposes and policies of the Act, which contemplates jurisdiction over economic relationships, not those that are primarily educational in nature,” according to the Board. The rulemaking “is intended to bring stability to an area of federal labor law in which the Board, through adjudication, has reversed its approach three times since 2000.”

Primarily educational relationship. Under the proposed rule, students who perform services at a private college or university related to their studies would be held to be primarily students with a primarily educational, not economic, relationship with their university, and thus not statutory employees, the Board explained, citing Brown University, 342 NLRB at 487 (2004).

Overruling contrary precedent. Subject to potential revisions in response to comments, the Board believes that the proposed rule reflects an understanding of Section 2(3) that is more consistent with the overall purposes of the Act than are the majority opinions in New York University, NYU 332 NLRB 1205 (2000), which held for the first time that certain university graduate student assistants were statutory employees, and Columbia University, 364 NLRB No. 90 (2016), which reconsidered and overruled Brown University.

Common-law not determinative. Accordingly, the proposed rule is based on the view that the common-law definition of “employee” is not conclusive, because the Act, and its policy promoting collective bargaining, “contemplates a primarily economic relationship between employer and employee and provides a mechanism for resolving economic disputes that arise in that relationship,” the Board explained, citing Brevard Achievement Center, 342 NLRB 982, 984-985 (2004).

Comments. Comments on the NLRB’s proposed rule must be received within 60 days of the proposal’s publication in the Federal Register. Comments in reply must be received by the Board on or before 67 days following the date of publication in the Federal Register, and are limited to replying to comments previously filed by other parties. Further instructions for submitting comments are detailed in the Board’s notice of proposed rulemaking.

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