On August 6, 2024, the National Labor Relations Board’s (NLRB) General Counsel Jennifer Abruzzo issued a Memo (see here) clarifying private academic institutions’ responsibilities under the National Labor Relations Act (NLRA) and the Family Educational Rights and Privacy Act of 1974 (FERPA) “in cases involving the duty to furnish information where both statutes may be implicated.” While the Memo represents guidance and not black letter law, institutions should still be aware of the content and carefully consider whether to adopt the process suggested by General Counsel Abruzzo. The Memo purports to lay out the General Counsel’s expectations that there be a relatively seamless disclosure of student-worker related information to a labor union representing or seeking to represent student workers. As a part of this, the General Counsel suggests that institutions obtain a preemptive FERPA authorization from each student worker to disclose FERPA-protected information to a labor union and that the authorization occur when the student-worker is onboarded. The Memo includes a model template to effectuate this authorization process.
Importantly, the model template expands who is entitled to information about student-workers. By consenting to the model template provided by the NLRB, a student-employee authorizes that their information be disclosed to any union that (1) represents student-employees at the institution, (2) has filed a petition with the NLRB to represent student-employees at the institution, (3) has demanded voluntary recognition from the institution, and/or (4) has informed the institution that it is organizing to present student-employees. The consent would also permit a union to redisclose such records to third parties as “reasonably necessary.” Under Board law, unions are generally entitled to information once they become voluntarily recognized or certified through an election.
In support of the General Counsel’s position, the Memo notes that this process would reduce delay and obviate the need to seek students’ consent at the time a union seeks to represent employees or submit an information request to carry out its representative functions. The Memo adds that failing a process that obtains the preemptive authorization, the parties must bargain over establishing a process to request consent once a union is recognized or certified. The parties do not need to wait for the first information request to initiate such bargaining.
Notably, the Memo also signals that an institution asserting a FERPA privilege to the disclosure of student information must be equipped to defend its assertion, including with documentary evidence; and that the institution must work with the union to determine a reasonable accommodation around the FERPA protection where such a position is asserted. Failing to have such positions available may subject the institution to an unfair labor practice charge.
Takeaway
As noted above, like other General Counsel memos, the guidance is an interpretation of the law, but not law itself. In this case, the memo also seeks to expand the rights of Union access to certain student information. As private academic institutions assess the impact of this guidance on their policies and practices around FERPA-protected information, it is important to seek legal guidance.
If you have any questions about this guidance, please contact our Michael Best team.