Last week, by a 3-1 vote, the NLRB approved a proposed rule that would classify graduate students, who conduct paid teaching and research, as students rather than “employees” under federal labor law. This rule would divest graduate students of their right to unionize and would end a recent wave of graduate student unionization efforts at private universities across the country. NLRB Chairman John Ring (R) stated that the purpose of the rulemaking was “to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law.”

The status of graduate students under federal labor law has been a contested partisan issue for decades.  In fact, if approved, the new rule would be the fourth time since 2000 that the NLRB has changed its position on the ability of graduate students to unionize. However, in the past, the NLRB has made these decisions on a case-by-case basis—not through formal rulemaking.

Prior to 2000, graduate students at private colleges and universities were considered students. In 2000, the NLRB, controlled by appointees of President Clinton, ruled that graduate students at NYU were employees and could unionize. In 2004, when appointees of President George W. Bush assumed control, the NLRB reversed course and found that graduate students at Brown University should not be considered employees and did not have the right to unionize because their relationship to the university was “primarily educational.” The Obama-era NLRB then overturned that decision in 2016, deciding that students at Columbia University who received compensation for teaching and research that they performed at the direction of the university could be considered employees with the right to unionize.

In making its decision, the majority cited to the 2004 Brown University decision and noted that the research and teaching work performed by graduate students is “vital to their education,” provides them with “knowledge of their discipline,” and is necessary to building faculty relationships. The only Democrat on the NLRB, Member Lauren McFerran, voted against the proposed rule, calling the distinction between economic and educational relationships “made up.”

The rule is likely to have vast consequences for private universities where graduate students have already formed unions – many of which are currently involved in negotiations over an initial contract. Before the NLRB can make its final vote on the proposed rule, a 60-day period for public comment must pass.