Institutions of higher education have seen a rise in student unionization under the National Labor Relations Act (NLRA). As part of this process, educational institutions often are required to disclose student-related information to a labor union that represents or seeks to represent student-workers. Given the potential for conflict between labor law and privacy law, the National Labor Relations Board (NLRB) general counsel issued a memorandum on Aug. 6, 2024, clarifying requirements for academic institutions in cases involving the duty to furnish information when NLRA and the Family Educational Rights and Privacy Act of 1974 (FERPA) may be implicated.  

Tension Between NLRA and FERPA

Universities and colleges must abide by the NLRA with regard to student-workers because student assistants and others who have a common-law employment relationship with their college or university are statutory employees as defined under the NLRA. These students have the right to organize and may form, join or assist labor organizations to bargain collectively for mutual aid or protection. Student-workers, like any statutory employees under the NLRA, may seek representation by a board election or through a majority support representation. 

Once a collective bargaining representative is recognized, the representative is entitled to information from the employer that is relevant and necessary to carry out their duties, but sometimes this information may be considered confidential. FERPA prohibits education institutions from disclosing “education records” or personally identifiable information contained in such records.

Resolving Tension Between NLRA and FERPA

The NLRB provides specific steps for educational institutions dealing with requests for information from a collective-bargaining representative that might implicate FERPA.

1. Determine whether the request seeks educational records or personally identifiable information. The first step is to assess whether FERPA protections apply. Certain records, such as benefit plans or workplace handbooks, fall into the category of records that are “general in nature” and do not contain student information. These records would not constitute education records under FERPA and would have to be turned over without delay. Each portion of each information request should be analyzed independently. If parts of the request are governed by FERPA, the information not governed by FERPA must be delivered without delay. If some or all the requested information is protected by FERPA, the institution must explain why it believes the information is protected by FERPA and confirm that the student’s employment is directly tied to their status as a student. Evidence to support the student-employee status includes job announcements, employment contracts, offer letters and student employment program letters.
2. If the request implicates records protected under FERPA, offer a reasonable accommodation. If a request seeks information protected by FERPA, the institution must seek an accommodation with the union that will allow the union to obtain the information. If the union is not satisfied with the employer’s proposed accommodation, it must identify the alleged deficiencies in the accommodation, but the employer does not carry the burden of proposing an alternative accommodation. Importantly, the general counsel deemed it unreasonable for the union to seek necessary FERPA consents to obtain contact information for the student-workers.
3. Abide by any agreement reached and furnish records.If the employer and union reach an agreement regarding an accommodation, the institution must abide by that agreement. If the employer and union cannot agree on an accommodation, the NLRB may then step in to create an accommodation considering the parties’ proposals made throughout the bargaining process.

Since the NLRB is called to facilitate accommodation bargaining frequently, it created a FERPA consent template that it encourages institutions to provide to student-employees during onboarding. The template would allow institutions covered by FERPA to disclose to a union, consistent with FERPA, any employment-related records of a student deemed relevant and reasonably necessary to the representation process. The consent template is worded to allow the union to redisclose that information to third parties. If an institution decides against using the template, the institution and student-employee may still separately bargain over establishing a process to request consent once a union is recognized or certified.

Institutions must be equally mindful of their obligations under the NLRA and FERPA. McGuireWoods continually tracks updates in the higher education space.