Once again exercising its previously rarely used rulemaking authority, the National Labor Relations Board (NLRB) has published proposed regulations that would exclude certain student workers at private nonprofit colleges and universities from coverage under the National Labor Relations Act (NLRA). If adopted, the regulations would reverse an interpretation of the NLRA issued by the Board during the Obama Administration and would prohibit these student workers from forming labor unions or engaging in other concerted activity with the Board’s protection.

The question of whether teaching and research assistants are covered by the NLRA is one on which the Board has flip-flopped in recent years, depending on which party controlled the agency’s majority. Traditionally, the NLRB has developed policy almost exclusively by adjudicating individual cases. The current Board, composed of a majority appointed by President Trump, has upended that tradition, however, by using its heretofore rarely employed rulemaking authority in several instances, this being the latest. By revising policy through rulemaking instead of adjudication, it makes it harder for a future Board to reverse course.

The NLRB’s proposed rule, as published in the Federal Register, is available online.

Members of the Center for Workplace Compliance (CWC) can read more here.