NLRB Releases Guidance to Assist Academic Institutions To Balance Disclosure and Confidentiality Obligations For Student Workers
Posted on October 21st, 2024
by Avery E. Smith
The National Labor Relations Board (“NLRB”)’s General Counsel, Jennifer A. Abruzzo, issued Memorandum GC 24-06 (“Memo”) on August 6, 2024. The Memo seeks to clarify academic institutions’ disclosure obligations under the National Labor Relations Act (“NLRA”) while protecting student information in accordance with the Family Educational Rights and Privacy Act (“FERPA”).
In this Collegiate Comment, KingSpry’s Employment Law Chair, Avery E. Smith, Esq., reviews the Memo and offers guidance to higher education administrators as it pertains to balancing the disclosure and protection of student information under the NLRA and FERPA.
Student-Workers
Pursuant to the Memo, the NLRB has seen a “significant increase” in student-workers at private colleges and universities (collectively, “institutions”) exercising rights protected by the NLRA. The exercise of such rights generally requires an institution to disclose student-related information to the labor union representing the student-workers.
Simultaneously, FERPA protects the privacy of students’ educational records and personally identifiable information. As such, the NLRB found it necessary to issue guidance to institutions clarifying the requirements of both laws in instances where both may be applicable.
Statutory Framework
Private institutions that employ student-workers are subject to the NLRA, because “student assistants [and others] who have a common-law employment relationship with their university are statutory employees under the [NLRA].”
Thus, student-workers are protected by Section 7 of the NLRA, which guarantees employees the right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
Issue
Like other statutory employees, student-workers may seek representation through (1) an NLRB representation election or (2) a demonstration that a majority supports representation. To process an election, an employer must furnish an employee list to the union. Alternatively, when representation is sought by other means, e.g., a demonstration, an employer may voluntarily furnish an employee list.
Once voluntarily recognized or certified, the collective-bargaining representative is entitled to information relevant and necessary to carry out their duties. Although an employer may assert that information requested by a union is confidential, the NLRB “balances the union’s need for information against any legitimate and substantial confidentiality interests asserted by the employee,” such as students’ right to privacy under FERPA.
FERPA Protections
FERPA applies to all educational institutions that receive federal funding, which includes all public schools and a vast majority of private institutions. Both public and private institutions may lose federal funding if they permit the release of education records or personally identifiable information absent consent or exception.
Guidance
Upon receiving a request for relevant information from a collective-bargaining representative, the NLRB recommends that private institutions follow the below guidance:
First, private institutions must determine whether the request seeks education records and/or personally identifiable information contained therein. If the request does not seek information protected by FERPA, such as a benefit plan or workplace handbook, the private institution must provide the records in a timely manner.
Alternatively, if the request seeks information protected by FERPA, private institutions must offer a reasonable accommodation in a timely manner and bargain in good faith with the union towards a resolution. If the parties reach an agreement regarding such accommodation, private institutions must abide by it and provide the requested records.
The NLRB’s guidance intends to assist private institutions in complying with the NLRA’s disclosure obligations and FERPA’s protection of education records; however, private institutions must note that its guidance does not constitute law.
FERPA Consent Template
The Memo contains a FERPA Consent Template, which private institutions may include in their paperwork or employment agreements with student-workers to facilitate an efficient process when it comes to balancing the NLRA and FERPA. Should a student-worker execute the FERPA Consent, they are agreeing to the disclosure of their education records related to their attendance at the private institution that are relevant to and reasonably necessary for (1) representation proceedings, (2) unfair labor practice proceedings, (3) union organizing activities, and/or (4) union representational functions.
Moving Forward
Private institutions are encouraged to review and assess the impact of the NLRB’s guidance on their current practices. Higher education administrators with questions regarding the NLRB’s Memo or implementation of the FERPA Consent Template should contact their solicitor or legal counsel.
The Higher Education Law attorneys at KingSpry are a trusted resource for providing legal advice, counsel, and representation. If your institution has questions regarding the National Labor Relations Board’s Memo, KingSpry is prepared to assist you.
NLRB Releases Guidance to Assist Academic Institutions To Balance Disclosure and Confidentiality Obligations For Student Workers
Posted on October 21st, 2024
by Avery E. Smith
The National Labor Relations Board (“NLRB”)’s General Counsel, Jennifer A. Abruzzo, issued Memorandum GC 24-06 (“Memo”) on August 6, 2024. The Memo seeks to clarify academic institutions’ disclosure obligations under the National Labor Relations Act (“NLRA”) while protecting student information in accordance with the Family Educational Rights and Privacy Act (“FERPA”).
In this Collegiate Comment, KingSpry’s Employment Law Chair, Avery E. Smith, Esq., reviews the Memo and offers guidance to higher education administrators as it pertains to balancing the disclosure and protection of student information under the NLRA and FERPA.
Student-Workers
Pursuant to the Memo, the NLRB has seen a “significant increase” in student-workers at private colleges and universities (collectively, “institutions”) exercising rights protected by the NLRA. The exercise of such rights generally requires an institution to disclose student-related information to the labor union representing the student-workers.
Simultaneously, FERPA protects the privacy of students’ educational records and personally identifiable information. As such, the NLRB found it necessary to issue guidance to institutions clarifying the requirements of both laws in instances where both may be applicable.
Statutory Framework
Private institutions that employ student-workers are subject to the NLRA, because “student assistants [and others] who have a common-law employment relationship with their university are statutory employees under the [NLRA].”
Thus, student-workers are protected by Section 7 of the NLRA, which guarantees employees the right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
Issue
Like other statutory employees, student-workers may seek representation through (1) an NLRB representation election or (2) a demonstration that a majority supports representation. To process an election, an employer must furnish an employee list to the union. Alternatively, when representation is sought by other means, e.g., a demonstration, an employer may voluntarily furnish an employee list.
Once voluntarily recognized or certified, the collective-bargaining representative is entitled to information relevant and necessary to carry out their duties. Although an employer may assert that information requested by a union is confidential, the NLRB “balances the union’s need for information against any legitimate and substantial confidentiality interests asserted by the employee,” such as students’ right to privacy under FERPA.
FERPA Protections
FERPA applies to all educational institutions that receive federal funding, which includes all public schools and a vast majority of private institutions. Both public and private institutions may lose federal funding if they permit the release of education records or personally identifiable information absent consent or exception.
Guidance
Upon receiving a request for relevant information from a collective-bargaining representative, the NLRB recommends that private institutions follow the below guidance:
First, private institutions must determine whether the request seeks education records and/or personally identifiable information contained therein. If the request does not seek information protected by FERPA, such as a benefit plan or workplace handbook, the private institution must provide the records in a timely manner.
Alternatively, if the request seeks information protected by FERPA, private institutions must offer a reasonable accommodation in a timely manner and bargain in good faith with the union towards a resolution. If the parties reach an agreement regarding such accommodation, private institutions must abide by it and provide the requested records.
The NLRB’s guidance intends to assist private institutions in complying with the NLRA’s disclosure obligations and FERPA’s protection of education records; however, private institutions must note that its guidance does not constitute law.
FERPA Consent Template
The Memo contains a FERPA Consent Template, which private institutions may include in their paperwork or employment agreements with student-workers to facilitate an efficient process when it comes to balancing the NLRA and FERPA. Should a student-worker execute the FERPA Consent, they are agreeing to the disclosure of their education records related to their attendance at the private institution that are relevant to and reasonably necessary for (1) representation proceedings, (2) unfair labor practice proceedings, (3) union organizing activities, and/or (4) union representational functions.
Moving Forward
Private institutions are encouraged to review and assess the impact of the NLRB’s guidance on their current practices. Higher education administrators with questions regarding the NLRB’s Memo or implementation of the FERPA Consent Template should contact their solicitor or legal counsel.
The Higher Education Law attorneys at KingSpry are a trusted resource for providing legal advice, counsel, and representation. If your institution has questions regarding the National Labor Relations Board’s Memo, KingSpry is prepared to assist you.