NLRB General Counsel Abruzzo Issues Memo Providing Guidance to Academic Institutions on Complying with Labor & Privacy Laws

Today, National Labor Relations Board (NLRB) General Counsel Abruzzo issued a memo (with attachment) to all field offices clarifying 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. 

In the last several years, the NLRB has certified dozens of elections for union representation involving student-workers, with almost 50,000 workers represented by these unions. When student workers exercise their right to form a union, it often requires educational institutions to disclose student-related information to a labor union that represents or seeks to represent those student-workers. In addition, the Family Educational Rights and Privacy Act of 1974 (FERPA) protects the privacy of student education records and personally identifiable information contained therein. The General Counsel’s memo provides guidance clarifying the requirements of NLRA and FERPA in cases involving the duty to furnish information where both statutes may be implicated. 

The memo also provides a FERPA consent template which institutions may include in paperwork to be completed by a student-employee upon onboarding of employment to help facilitate an efficient process. The consent would encompass disclosure of student-employee’s education records related to their attendance at the school that are relevant to and reasonably necessary for representation proceedings (i.e., union elections), unfair labor practice proceedings, union organizing activities and/or union representational functions. The U.S. Department of Education engaged with the NLRB’s Office of the General Counsel in the development of this consent form. 

“Today’s memo will assist colleges and universities in ensuring that student-workers can effectively exercise their workplace rights under the National Labor Relations Act while ensuring compliance with student privacy rights,” said NLRB General Counsel Jennifer Abruzzo. “We are grateful for the assistance from the Department of Education. This initiative is another excellent example of the Biden-Harris Administration’s whole-of-government approach where agencies work together to bolster workers’ rights.” 

“Colleges and universities across the country deserve clear guidance when it comes to complying with privacy laws for student workers,” said Roberto J. Rodríguez, Assistant Secretary, Office of Planning, Evaluation and Policy Development at the U.S. Department of Education. “The NLRB’s memo will support the sharing of information and records in a manner that upholds student rights and privacy, and we’re thankful for their collaboration on this effort.” 

Questions about this memo may be directed to the NLRB’s Regional Offices. Questions about FERPA can be directed to the Department of Education’s Student Privacy Policy Office at Contact | Protecting Student Privacy (ed.gov).