The National Labor Relations Board (NLRB or Board) recently announced it was changing course on whether students should be considered employees and therefore can unionize. This change of course returns to previous Board precedent from case law that graduate students, and perhaps any students employed for pay, can be considered employees. This change of course also halts what many thought signaled the Board’s desire to answer this issue by rulemaking rather than through case precedent.

On March 15, the Board issued a notice withdrawing a proposed rulemaking from 2019 which many thought signaled the Board’s plan to adopt a rule regarding the status of students as employees under the National Labor Relations Act (NLRA). The result of this withdrawal is that the governing precedent returns to the decision in Columbia v. NLRB in which the Board held that not only graduate students but any students employed for pay, may be employees subject to collective bargaining under the NLRA.

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Photo of Audrey Anderson Audrey Anderson

Audrey Anderson focuses her practice on representing colleges, universities and educational institutions. Drawing on her over 30 years of experience gained as outside litigation counsel, government counsel, and as the general counsel for a major research university, Audrey brings judgment, creativity and practicality…

Audrey Anderson focuses her practice on representing colleges, universities and educational institutions. Drawing on her over 30 years of experience gained as outside litigation counsel, government counsel, and as the general counsel for a major research university, Audrey brings judgment, creativity and practicality to solving her client’s problems across a range of issues arising from the activities of students, faculty and others in learning, living, teaching, researching and working on a college campus. Whether an issue arises under the First Amendment or Title IX, occurs in the lab, the board room or the athletics department, involves counseling, negotiation, or litigation, Audrey helps her clients find practical ways forward.

Photo of Tim K. Garrett Tim K. Garrett

Tim Garrett helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims…

Tim Garrett helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. His work has ranged from defending a major university during a significant wage and hour collective action involving thousands of employees to the successful defense of a major healthcare provider in a gender discrimination / retaliation case. In addition, Tim has served as nationwide labor and employment counsel for the largest nonprofit dialysis company in the U.S.