As students in higher education flock toward unionization, private sector colleges and universities ("educational institutions or institutions") are forced to reconcile the Family Educational Rights and Privacy Act’s (FERPA) privacy requirements with the National Labor Relations Act’s (NLRA) demands that employers share information about “employees” with the unions that represent them. The issue lies with balancing compliance needs with the NLRA while avoiding any severe penalties for FERPA violations—loss of federal funding being the most significant. Recently, the National Labor Relations Board’s (NLRB) General Counsel (GC) provided guidance to help educational institutions reconcile these competing obligations. Memorandum from the NLRB Office of the General Counsel, No. GC 24-06 (August 6, 2024) (GC Memo 24-06). Among other things, the GC suggests that institutions address the issue proactively by including a FERPA consent form among the documentation students complete upon commencing employment, irrespective of whether a union already exists. For institutions to assess this suggestion, it is essential to understand why this issue has only recently presented itself, as well as the NLRA’s disclosure requirements and FERPA’s confidentiality requirements.

Why Now?

The NLRB has a consistent history of flip-flopping on whether students can also be employees of their institution. In its last decision on the subject, the NLRB held in 2016 that certain graduate and undergraduate students at Columbia University (e.g., teaching assistants) were university employees. Columbia University, 364 NLRB 1080 (2016). After a Trump-appointed NLRB failed to reverse that decision via rulemaking, student organizing exploded concomitant with President Biden’s inauguration. While it’s possible that a presidential election and the consequent change in the Board’s makeup could result in another flip-flop, such a change seems less likely in light of recent interpretations of other federal employment statutes by federal circuit courts that seem aligned with the NLRB’s position that students can also be employees.[1] Thus, after decades of back and forth on whether students can also be employees of their educational institution, it seems that the judicial winds have shifted markedly toward recognizing employee status.

Unionization Requires Disclosure of Information about Employees

With unionization comes an obligation to bargain in good faith with the employees’ bargaining representative (labor union) about wages, hours, and working conditions. A fundamental part of that duty to bargain is the duty of an employer to provide the union with information about employees. That information can include the name of each bargaining unit[2] member and each employee’s pay rate, hours, and contact information. Even the unionization process requires that employers furnish a union with specific information about employees in the proposed unit--full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cell telephone numbers).

While the NLRB acknowledges that employers may have concerns about confidentiality, the NLRB has interpreted the NLRA to require that an Employer raise those concerns with the union and bargain with the union about how to provide the information while simultaneously addressing the Employer’s confidentiality concerns. Thus, “[t]he employer has the burden to establish that it has . . . a confidentiality interest and that this interest outweighs the union’s need for the information.” GC Memo 24-06 at 2. Further, the employer “must timely seek an accommodation with the union that will effectuate the union’s interest in obtaining the information,” i.e., it must “bargain in good faith toward an agreement that addresses both parties’ interests.” GC Memo 24-06 at 2-3.

FERPA Privacy Requirements

FERPA presents a confidentiality concern in requiring that educational institutions that receive federal funds obtain a student’s written, prior consent when disclosing personally identifiable information contained in “education records” unless an exception applies. In the context of employment, FERPA regulations state that records concerning a student employee “who is employed as a result of his or her status as a student are education records” whereas records that “[r]elate exclusively to the individual in that individual’s capacity as an employee” and that are “not available for use for any other purpose” are not “education records.” GC Memo 24-06 n.20, citing 20 USC 1232g(a)(4)A) and 34 CFR 99.3. The distinction is that a student could have a regular job with the institution, and those routine employment records would be excluded from FERPA. In contrast, if the student has a work-study job open only to students, then the employment-related records may be covered by FERPA. Similarly, records relating to graduate teaching assistants or graduate research associates may be protected by FERPA.

Further, consent is not required if the information is sufficiently de-identified or if the college only provides “directory information,” so long as the institution satisfies disclosure requirements that provide students an opportunity to object. GC 24-06 Memo at 3-4. Thus, on an annual basis, students must be given the opportunity to “opt out” of the disclosure of “directory information,” which usually happens at the beginning of the year. The institution does not need to offer students the opportunity to “opt out” every time they are about to disclose “directory information.”

Educational Institutions Must Establish a Confidentiality Concern and Bargain about an Accommodation

In this context, the GC memorandum provides guidance on meeting the NLRA’s disclosure obligations. Thus, when faced with a request for information, institutions must, as an initial step, establish that a confidentiality concern exists. As an example, if a union seeks documents like an employee handbook or information about workplace benefits, the GC opines that FERPA is unlikely to be implicated because that information is not specific to an individual. On the other hand, with more specific requests about a student’s employment, the institution must demonstrate that the “student-employee is employed as a result of their status as a student.” On this issue, the GC states that documents (e.g., job announcements, redacted employment contracts or offer letters, and student-employment program documents) are necessary to establish that nexus for each job classification. In a case involving Grinnell College, the GC argued that Grinnell failed to meet that burden with respect to dining hall employees because the college failed to show that their employment “was contingent on them being enrolled at the college . . . .” Advice Memorandum from the NLRB Office of the General Counsel, Case 18-CA-300972, at 8 (May 25, 2023) ("Advice Memo").[3]

If an institution meets that initial burden, it must offer a reasonable accommodation and bargain with the union about how to get the union the information that it requires while at the same time addressing its confidentiality concerns. For example, the GC suggests bargaining over a process for the institution to obtain student consent, including the scope of that consent and the acceptability of de-identified information. GC 24-06 Memo at 5. As for the union, it must raise any objections it has to the accommodation proffered by the employer, but “it need not propose a precise alternative.” GC Memo 24-06 at 3.

Finally, the GC suggests that if the parties cannot reach an agreement, the union may file an unfair labor practice charge even if the institution has both demonstrated a confidentiality concern and bargained in good faith about an accommodation. GC Memo 24-06 at 5. Rather than determining whether an institution has violated the NLRA, the GC suggests that the Board would act as an arbitrator to craft an accommodation based on the parties’ bargaining proposals. GC Memo 24-06 at 5. Whether the Board possesses that type of authority in the absence of a violation is unclear. In the Grinnell College matter, the GC sought to compel Grinnell to “seek FERPA releases from student-employees who are actually covered by FERPA” and, for those who fail or refuse to sign, to “provide the Union with their respective de-identified information.” Advice Memo p.5. That case closed without going before an administrative law judge.

Information Required for a Union Election

Another potential conflict between the FERPA and NLRA is the representation process. Once a representation petition is filed, current regulations require that employers provide information about employees/students in the bargaining unit to the NLRB and the union. As no bargaining relationship exists at that point, bargaining for an accommodation is not applicable. In this context, the GC states that “the NLRA and FERPA can be applied without conflicts,” as “the NLRB may subpoena voter lists from institutions and then share those lists with any union that is a party to the representation case.” GC Memo 24-06 at n.5.

GC Suggests a Proactive Measure

For those institutions that want to be proactive on this issue, the GC worked with the U.S. Department of Education to develop a consent form that institutions may present to students in the paperwork that student-employees complete upon onboarding employment. GC Memo 24-06 at 5. The GC suggests that a college may rely on this form to disclose relevant information to a union that represents student-employees, that has filed a petition to represent those students, that has demanded voluntary recognition, or that intends to organize those students. GC Memo 24-06 at 5-6. Seemingly unrelated to the issue of consent, the form also includes a statement that Congress passed the NLRA to encourage collective bargaining. The form fails to note that the NLRA also specifically protects an employee’s right to refrain from joining a labor organization. GC Memo 24-06, attachment section 4.

Conclusion

While the NLRB’s GC has made an effort to reconcile an institution’s obligations under the NLRA with FERPA, it is important to recognize that this area of the law is developing on many fronts. Even the question of whether students may be employees of an educational institution arguably remains unsettled. Therefore, institutions will want to consult with competent legal counsel in preparation for and as they navigate these novel issues.

ENDNOTES

[1] See the Third Circuit Court of Appeals’ decision in Johnson v. NCAA, No. 22-1223 (3rd Cir. July 11, 2024), which recognizes that athletes at an institution can, in that capacity, be employees of their educational institution under the Fair Labor Standards Act and the Sixth Circuit Court of Appeals’ decision in Huang v. Ohio State Univ., No. 23-3469 (6th Cir. August 28, 2024), which held that “a student’s academic and employment work can also overlap, and that does not remove them from the employment protections of Title VII either.” See also the Supreme Court’s antitrust decision in NCAA v. Alston, 594 U.S. 69 (2021) that rejected the concept of “amateurism” as a defense to the NCAA’s restrictions on compensation for athletes.

[2] A bargaining unit is the employee group that the union represents.

[3] In that matter, the GC stated that Grinnell violated its duty to bargain because it did not establish that the information that the union requested was subject to FERPA and stated that even if the information was subject to FERPA, a complaint should issue because the college did not reach an accommodation with the union and the information had not been provided. Advice Memo p.5.