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BREAKING: NLRB Withdraws Proposed Rule Concerning Employee-Status of Student Teachers and Research Assistants

By Paul Salvatore, Steven Porzio & Elizabeth Dailey on March 12, 2021
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After publishing the Notice of Proposed Rulemaking over a year ago, followed by tens of thousands of public comments and many months of anticipating the final rule, the NLRB announced today that it will publish a Notice of Withdrawal of the proposed student assistant rule. Under the proposed rule, students at private colleges and universities who perform services, including teaching and research, in connection with their studies for compensation would have been exempted from the NLRB’s jurisdiction and definitively not “employees” as defined by Section 2(3) of the NLRA. As we previously reported here and here, the rule would have helped to bring certainty to an area of labor law that has seen regular oscillation since the 1970s, with the NLRB changing its position on the employee-status of student workers three times over the years.

The Board’s short Notice of Withdrawal did not provide a detailed explanation for its decision, stating 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.” The Notice stated that the Board is withdrawing the proposed rule in an attempt to effectively allocate the Board’s limited resources. The Notice of Withdrawal will be published in the Federal Register on March 15, 2021.

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.  We anticipate that this will lead to another wave of union organizing in higher education.  As always, we will be closely monitoring the Board as it continues to shake up national labor policy from the last four years.

Photo of Paul Salvatore Paul Salvatore

Paul Salvatore provides strategic labor and employment law advice to companies, boards of directors, senior executives and general counsel in such areas as labor-management relations, major litigation, alternative dispute resolution, international labor and employment issues, and corporate transactions.

Paul negotiates major collective bargaining…

Paul Salvatore provides strategic labor and employment law advice to companies, boards of directors, senior executives and general counsel in such areas as labor-management relations, major litigation, alternative dispute resolution, international labor and employment issues, and corporate transactions.

Paul negotiates major collective bargaining agreements in several industries, including real estate and construction. In 2015, he represented the NYC real estate industry’s multi-employer organization, The Realty Advisory Board on Labor Relations (RAB), in its $8 billion collective bargaining agreements with SEIU Local 32BJ. Paul also represented the Cement League, a multiemployer group of NYC area superstructure contractors, in halting an illegal strike by the Carpenters Union and negotiating a significant new collective bargaining agreement. He previously negotiated, on behalf of The Related Companies with 18 New York City construction unions, a landmark project labor agreement (PLA) for Hudson Yards on Manhattan’s West Side, the largest private real estate development in U.S. history.

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Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board.

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

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Photo of Elizabeth Dailey Elizabeth Dailey

Elizabeth Dailey is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Read more about Elizabeth DaileyEmail
  • Posted in:
    Employment & Labor
  • Blog:
    Labor Relations Update
  • Organization:
    Proskauer Rose LLP
  • Article: View Original Source

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