08/07/2024: Reconciling Unions' Right to Request Information with FERPA Student Privacy Law
A GC memo and advice memo on the same topic.
Clarifying Universities' and Colleges' Disclosure Obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act, GC 24-06, (GC Memo)
This General Counsel Memorandum (GC 24-06) from NLRB General Counsel Jennifer A. Abruzzo provides guidance on how private colleges and universities should handle information requests from unions representing student workers, balancing obligations under the National Labor Relations Act (NLRA) and the Family Educational Rights and Privacy Act (FERPA).
Key points of the legal analysis include:
Student workers at private institutions are covered by the NLRA and have the right to unionize.
Unions are entitled to relevant information necessary for their representational duties.
When an employer claims confidentiality concerns, they must balance the union's need against legitimate confidentiality interests.
FERPA protects the privacy of student education records, requiring consent for disclosure of personally identifiable information, with some exceptions.
Institutions must determine if requested information constitutes "education records" under FERPA.
If FERPA applies, the institution must offer a reasonable accommodation and bargain in good faith with the union.
If no agreement is reached, the NLRB will determine an appropriate accommodation.
The memo outlines a three-step process for institutions responding to information requests:
Determine if the request seeks FERPA-protected information.
If FERPA applies, offer a reasonable accommodation and bargain in good faith.
Furnish agreed-upon information or, if no agreement is reached, await NLRB determination.
To streamline the process, the GC suggests institutions use a FERPA consent template during student worker onboarding.
Significant cases cited:
Columbia University, 364 NLRB 1080 (2016) - Held that student assistants with common-law employment relationships are statutory employees under the NLRA.
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) - Established that unions are entitled to relevant information for collective bargaining duties.
Borgess Medical Center, 342 NLRB 1105 (2004) - Board considers state confidentiality laws in assessing employer's interests.
Metropolitan Edison Co., 330 NLRB 107 (1999) - Employer must seek accommodation, not flatly reject information request.
Piedmont Gardens, 362 NLRB 1135 (2015) - Union must explain why employer's accommodation offer is insufficient but need not propose a precise alternative.
The memo aims to provide clarity on the intersection of NLRA and FERPA obligations, emphasizing the need for good faith bargaining and reasonable accommodations when handling information requests involving student worker data.
Trustees of Grinnell College, 18-CA-300972 (Advice Memo)
This advice memo from the NLRB's Office of the General Counsel concerns a case involving Trustees of Grinnell College and a union representing student employees. The key issues are:
Whether the employer violated the NLRA by refusing to provide names, contact information, and job titles of unit employees to the union.
How to balance the employer's confidentiality concerns under FERPA with the union's right to information under the NLRA.
Key points from the legal analysis:
The employer failed to establish that the requested records were "education records" protected by FERPA. Employment records are only subject to FERPA if the student is "employed as a result of [their] status as a student." The employer did not provide evidence that employment was contingent on student status for the positions at issue.
Even if FERPA applied, the employer still violated the NLRA by failing to reach an accommodation with the union after good faith bargaining attempts.
When an employer asserts confidentiality concerns, it must seek an accommodation with the union rather than flatly refusing to provide information. The employer has the initial burden to offer a reasonable accommodation.
If the parties cannot reach an agreement, the Board will balance the interests and determine an appropriate accommodation based on the proposals made during bargaining.
The memo recommends issuing a complaint and arguing that the appropriate accommodation is for the employer to: a) Seek FERPA releases from any student-employees actually covered by FERPA b) Provide information for those who sign releases c) Provide de-identified information for those who do not sign
Key cases cited:
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) - Unions entitled to relevant information for collective bargaining duties.
Borgess Medical Center, 342 NLRB 1105 (2004) - Board considers state confidentiality laws in assessing employer's interests.
Metropolitan Edison Co., 330 NLRB 107 (1999) - Employer must seek accommodation, not flatly reject information request.
Allen Storage & Moving Co., 342 NLRB 501 (2004) - Union must engage in discussions if rejecting employer's accommodation offer.
The memo concludes that complaint should issue alleging a Section 8(a)(5) violation for failing to furnish the requested information, absent settlement. This would allow the Board to balance the parties' interests and determine an appropriate accommodation.