NLRB General Counsel Issues Guidance to Colleges and Universities on Compliance With Disclosure Obligations When Student-Workers’ Labor and Privacy Rights Are Implicated
On August 6, 2024, National Labor Relations Board (“NLRB”) General Counsel, Jennifer Abruzzo, issued a memo to all field offices which contained guidance to private colleges and universities on how to abide by disclosure obligations to labor unions for their student-workers under the National Labor Relations Act (“NLRA”) while still maintaining compliance with the Family Educational Rights and Privacy Act of 1974 (“FERPA”). The memo’s guidance generally applies to private colleges and universities whose student-workers are represented by a labor union for collective bargaining over wages, hours, and working conditions. Such union representation typically follows either (1) voluntary recognition of the union by the college/university or (2) a representation election proceeding through which student-workers selected the union to represent them.
A union’s representation of student-workers is the source of a bargaining relationship between college/university and labor union. Within the bargaining relationship is a duty for each side to provide the other certain information relevant to union representation and collective bargaining.
The memo highlights a three-step process applicable in situations where information requested touches on student privacy rights under FERPA as well as a current collective bargaining relationship.
First, the academic institution should determine whether the labor union’s request seeks education records or personally identifiable information as defined in FERPA. In sum, FERPA defines education record as any document that includes information related to a specific student, such as financial, disciplinary, or health information. Institutions should carefully review the request to determine if it involves any information subject to FERPA protection. For requests seeking this type of data, the academic institution needs to determine whether the student-employee whose data is requested is employed as a result of their student status. A student-employee is employed as a result of their student status if the academic institution can provide documents, such as announcements or employment contracts, that show employment was dependent on student status. If the student-employee is employed as a result of their student status, their employment data is considered education records under FERPA, and there are confidentiality issues that the academic institution should be prepared to explain to the union and, if necessary, the NLRB.[1] Employee records from student-workers whose employment is not contingent on their student status are not covered by FERPA and do not risk a confidentiality issue. These records should thus be produced to the union in a timely manner. Requests for workplace handbooks and benefit plans are usually general in nature and must be produced to the union in a timely manner.
Second, when information protected by FERPA is sought, the academic institution must seek a reasonable accommodation and bargain in good faith with the union. Some possible things parties can bargain over is the process for requesting written consents, the scope of the consent, and the acceptability of de-identified information (removing personally identifiable information).
Lastly, if the academic institution and union reach an agreement over an accommodation, the academic institution must abide by that agreement and furnish the requested records. When parties are unable to reach a consensus, the union may file an unfair labor practice charge and the NLRB will issue an appropriate accommodation. Due to the frequency with which FERPA-protected information is requested, the memo issued by NLRB General Counsel includes a template consent form for student-workers to consent to having the academic institution disclose their employment-related education records to the union should it be requested. The NLRB recommends that academic institutions include this consent form in the on-boarding process for student-workers.
Note that while the NLRB General Counsel’s memo may not apply to non-union environments involving student-workers, there may be areas where private colleges/universities face organizing campaigns or other scenarios where these suggested steps may be helpful guidance. All private colleges and universities should expect that where a question arises on information requests and the bargaining duty, the NLRB in the current Administration will be looking for opportunities to develop the law in this area. Investigation and prosecution of unfair labor practice charges challenging either college/university or labor union refusal to provide requested information in specific settings will energize such efforts. Of course, the details will matter. Legal counsel experienced with both FERPA and how the NLRB enforces federal labor law on information requests and bargaining duties should be consulted. For more information, please contact the author of this alert or your regular AALRR counsel.
[1] See Trustees of Grinnell College, Case 18-CA-300972, Significant Advice Memorandum dated May 25, 2023 (citing the definition of education records in 34 C.F.R. § 99.3(b) which excludes employment records unless the individual is employed as a result of their status as a student).
This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.
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