NLRB General Counsel Suggests How Colleges And Universities Can Satisfy NLRA Disclosure Obligations Without Violating FERPA

Colleges and universities that employ their own students face conflicts about how to protect student information, as required by the Family Educational Rights and Privacy Act (FERPA), while disclosing information about student-employees who seek to unionize, as required by the National Labor Relations Act (NLRA).

On August 6, 2024, the National Labor Relations Board's general counsel issued a memorandum with her advice about how higher education institutions should handle this dilemma.

Background

FERPA Protects Educational Records – Including Student Employment Records – from Disclosure

With limited exceptions, FERPA prohibits educational institutions from disclosing a student's "education records" or personally identifiable information contained in them. FERPA defines "education records" as records directly related to a student. "Student," in turn, is broadly defined as "any individual who is or has been in attendance at an educational agency or institution."

FERPA does not classify employment records of a student as "education records" if the employment records relate only to the individual's employment by the institution and are maintained by the institution in the normal course of business. At the same time, employment records relating to an individual matriculated at the institution who is employed as a result of their status as a student are considered "education records" under FERPA.

Thus, records pertaining to an individual who is both a student and an employee must be considered "education records" when the student is employed by the institution by virtue of their status as a student, in which case the records are "education records" protected from disclosure under FERPA.

Disclosure Obligations under the NLRA

Under the NLRA, employers, including educational institutions, have a duty to furnish labor unions with certain information pertaining to employees who are represented or may be represented by the union. For example, on receipt of an election petition, employers are required to furnish the union with information regarding the employees in the proposed bargaining unit. If a union is certified as the collective bargaining representative for a group of employees, the employer has a duty to provide the union with information it needs to carry out its representational role (e.g., to assist with collective bargaining, processing grievances, etc.).

When student employees are involved, the institution must decide how to balance its obligation not to disclose FERPA information without the student's consent with the NLRA requirement to disclose such information to the union that represents the employee (or to the NLRB itself).

GC's Guidance

Anticipating that higher education institutions will most often face both FERPA and NLRA obligations when the union requests information about student employees that it seeks to or already represents, the NLRB general counsel suggests institutions facing such questions use this three-step approach:

Step One: Colleges and universities should first determine whether the union's request seeks "education records" – that is, records pertaining to a specific student-employee that contain personally identifiable information. If the request does seek individual-specific data, the institution must consider whether the student-employee is employed "as a result of his or her status as a student." If so, the records should be considered FERPA-protected "education records" that cannot be disclosed without the student's consent unless an exception applies.

If the institution determines that some or all the records sought by the union are "education records" protected by FERPA, it should explain to the union the basis for this conclusion and substantiate its position with documentary evidence, if available.

If on the other hand the request seeks records that the institution concludes are not covered by FERPA, those records must be provided to the union without unreasonable delay – even if FERPA applies to other parts of the request.

Step Two: If the union's request seeks FERPA-protected information, the GC advises the institution to bargain with the union for an accommodation of FERPA compliance and the union's needs – such as by agreeing how to obtain written consent¹ from students whose records are sought, limiting the request to directory information,² or de-identifying the information.

Where the union has the student-employee's identity and contact information (for example where a grievance concerns discipline of a single unit employee), the GC says it would be reasonable for the institution to expect the union to secure a written consent to obtain FERPA-protected information and records. Conversely, it would violate an institution's duty to bargain about the information request in good faith for it to insist that the union seek FERPA consents from student-employees if the union does not have their identities or contact information (such as where payroll issues impact a category of individuals that only the employer's own payroll system could identify).

Step Three: Finally, the GC advises that if the parties agree upon an information-providing accommodation, the institution must abide by that agreement and furnish the records accordingly. If the parties are unable to reach an agreement and the union files an unfair labor practice charge, the GC will consider the parties' bargaining proposals when determining whether to issue a complaint. The GC noted that she has had ULP complaints issued in several cases seeking Board orders that institutions seek FERPA consents and furnish information about student employees that a union has sought for bargaining or contract administration.

Key Takeaways for Colleges and Universities

The advice memorandum does not have the force of law, nor is it technically binding on the NLRB itself. It reveals, however, how the GC believes higher education institutions can meet both FERPA and NLRA obligations for information disclosure. Thus, it provides insight into how the GC will make charging decisions when unfair labor practice charges raise such issues in the future.

The guidance memo confirms the GC's acknowledgment that colleges and universities need not provide FERPA-protected information or education records about student-employees unless FERPA requirements for a legally permissible disclosure (e.g., directory information, a consent on file that authorizes the release, advance notice of the institution's intent to comply with a lawfully issued subpoena) have been satisfied. The memo also indicates that where information is withheld, the GC will carefully examine whether the institution satisfied its duty to bargain about an accommodation that would have provided the union with information it needs while also complying with FERPA.

Footnotes

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