September 16, 2021

Volume XI, Number 259

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September 15, 2021

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September 14, 2021

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Labor Board Withdraws Proposed Rule Excluding Student Workers from NLRA Coverage

In an interesting turn foreshadowing a coming change in its leadership, the National Labor Relations Board (NLRB) has withdrawn the rule it proposed in September 2019 to exclude student workers at private colleges and universities from coverage under the National Labor Relations Act (NLRA). The proposed rule would have excluded students whose studies included working as teaching or research assistants at private higher education institutions from the definition of “employees” under the NLRA.

“Employees” under the NLRA have protected rights to unionize and engage in collective bargaining. The proposed rule would have categorically excluded student workers from these protections.

The NLRB has repeatedly shifted its position on the status of student workers. However, since 2016, the Board has held that an employment relationship can exist under the NLRA between a private college or university and its employee, even when the employee is simultaneously a student. Columbia University, 364 NLRB No. 90. The proposed rule would have reversed Columbia University and, as a rule, would have placed the non-employee status of student workers beyond the reach of NLRB case decisions. With the withdrawal of the proposed rule, Columbia University will remain controlling precedent.

Further, following the expiration of NLRB Member William Emanuel’s term in August 2021, President Joe Biden will have the authority to establish a new (presumably Democratic) majority of the NLRB. Perhaps in light of that, the Board “decided to withdraw this rulemaking proceeding … to focus its time and resources on the adjudication of cases currently in progress.”

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 74
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About this Author

Michael Bertoncini, Jackson Lewis, labor relations attorney, employment litigation lawyer, NLRB proceedings counsel, arbitration law
Principal

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, and employment law counseling and litigation.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with...

617-367-0025
Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta
Shareholder

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

404-586-1835
Richard F. Vitarelli Harford  Connecticut Labor Relations Lawyer at Jackson Lewis Law Firm
Principal

Richard F. Vitarelli is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Part of the firm’s national labor practice, he has over two decades of experience representing employers nationally in strategic labor relations, collective bargaining, and union organizing, including in the context of mergers and acquisitions, corporate restructuring and contract administration. He serves as general labor and employment counsel for employers and multi-employer associations in various industries, including construction, manufacturing, health care and senior living,...

860-522-0404
Thomas V. Walsh, Jackson Lewis, employment arbitration Lawyer, White plains, Union Organizing Attorney
Shareholder

Thomas V. Walsh is a Shareholder in the White Plains, New York, office of Jackson Lewis P.C. Since joining the firm in 1986, Mr. Walsh has represented employers in all aspects of labor and employment law and litigation.

Mr. Walsh has represented employers before numerous state and federal courts, regulatory agencies, as well as in numerous arbitrations. Mr. Walsh has extensive experience in representing employers faced with union organizing drives and in proceedings before the National Labor Relations Board. He has an...

914-872-6912
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