Recently, in Johnson v. NCAA, the U.S. Court of Appeals for the Third Circuit held that, depending upon the surrounding circumstances, student-athletes may qualify as employees under the Fair Labor Standards Act (FLSA). This is the latest in a series of court and agency decisions involving student-athletes seeking employee status at their colleges and universities. As we reported in February, the National Labor Relations Board (NLRB) recently ruled that the student-athletes on the Dartmouth College men’s basketball team are “employees” under the National Labor Relations Act (NLRA) and, therefore, were eligible to vote on whether to unionize (see Trustees of Dartmouth College, Case No. 01-RC-325633). This decision, which was issued by Regional Director for Region 1 Laura Sacks, is currently on appeal to the full NLRB. These decisions are likely to encourage additional litigation by student-athletes across the U.S.
NLRB Rules That Dartmouth Basketball Players Are Employees
On February 5, the regional director for Region 1 of the National Labor Relations Board (NLRB or Board) ruled that the student-athletes on Dartmouth College’s men’s basketball team are “employees” under the National Labor Relations Act (NLRA) and, therefore, are eligible to vote on whether to unionize. Applying the Board’s common law test, the regional director reasoned that the basketball players are employees “because Dartmouth has the right to control the work performed by the men’s varsity basketball team, and because the players perform that work in exchange for compensation.” Although this decision is likely to be appealed to the full Board, it could ultimately result in a ruling with a significant impact on the status of student-athletes across all divisions and all sports within higher education.
New Jersey Published Proposed Regulations Implementing the “Temporary Workers’ Bill of Rights”
Q. Are there any updates related to New Jersey’s Temporary Workers’ Bill of Rights?
A. Yes. As previously reported, in February, New Jersey Governor Phil Murphy signed into law the Temporary Workers’ Bill of Rights (the Bill of Rights), which established several new labor and employment protections for New Jersey’s 125,000+ temporary workers. On July 21, the New Jersey Department of Labor and Workforce Development Division of Wage and Hour Compliance published a set of proposed regulations implementing the Bill of Rights. While there is a 60-day comment period before the regulations become final, the state has represented that, at this time, it intends to enforce the Bill of Rights in accordance with the proposed regulations.
Delaware Passes Paid Family Leave Law
Q. What do companies with employees in Delaware need to know about Delaware’s paid family leave law?
A. On May 10, Governor Carney signed the Healthy Delaware Families Act into law, making Delaware the eleventh state in the country to offer paid family leave when the law goes into effect in 2026. The law will provide 12 weeks of paid parental leave and six weeks of paid medical, family caregiving, and military leave to eligible Delaware employees through a state-run paid family and medical leave insurance program.
New York Expands Whistleblower Protections Under Section 740 of the Labor Law
Q. As a New York employer, what do I need to know about the amendments to New York’s Labor Law regarding whistleblowers?
A. Effective January 26, New York State enacted legislation significantly expanding whistleblower protections under Section 740 of the New York Labor Law. In passing this law, New York has become one of the most pro-employee whistleblower jurisdictions in the country. The amendments expand the scope of individuals protected, the definition of protected activity, the types of employment-related actions that constitute retaliation, the available remedies for aggrieved employees, and the notice requirements for employers.
A Company’s Press Release May Be Used Against It In Employee’s Retaliation Litigation
Q: What are the risks to a company when making a public statement about ongoing employment litigation?
A: A federal judge in Washington, DC recently allowed a pair of married former law firm associates, suing the firm for sex discrimination, to add retaliation claims to their lawsuit for allegedly “false and malicious” statements the firm made about them in an August 2019 press release. See Savignac, et al v. Jones Day, et al, U.S. District Court for the District of Columbia, No. 19-cv-02443.
By way of background, plaintiffs Julia Sheketoff and Mark Savignac sued Jones Day over a parental leave policy they claimed illegally discriminates against men by offering biological mothers eight more weeks of leave than biological fathers. They also accused the firm of firing Savignac because he challenged the firm’s policy and underpaying Sheketoff because of her sex. After they filed the highly publicized lawsuit in August 2019, the firm circulated a press release about the lawsuit.
New OSHA Guidance for COVID-19 Prevention Programs
Q: What do employers need to know about the recently released Occupational Safety and Health Administration (OSHA) guidance for COVID-19 prevention programs in the workplace?
A: On January 21, President Biden signed an Executive Order on protecting worker health and safety. Pursuant to the order, on January 29, OSHA released new guidance titled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”
DOL Proposes New Rule Clarifying Independent Contractor Status
Q: What do I need to know about the proposed federal rule on independent contractor classification?
A: The U.S. Department of Labor (DOL) issued a proposed rule, making it easier for workers to be classified as independent contractors under the Fair Labor Standards Act (FLSA).
When evaluating independent contractor classifications under the FLSA, courts traditionally have applied the “economic realities” test, which relies on balancing seven factors. However, this has resulted in inconsistent court rulings and confusion among companies and individuals. The DOL’s proposed rule adopts a modified version of this test, focusing on certain factors, while clarifying others.
Third Circuit Upholds Philadelphia’s Salary History Ban
Q. Are employers allowed to ask employees about their salary history in Philadelphia?
A. The U.S. Court of Appeals for the Third Circuit has ruled that a Philadelphia city ordinance that prohibits Philadelphia employers from asking applicants about their current or past pay rates is constitutional. In April 2018, a
New Pennsylvania Medical Marijuana Lawsuit May Someday Provide Guidance to Employers
Q: Are there any new cases involving Pennsylvania’s Medical Marijuana Act in the context of employment?
A: Given that state-sanctioned use of medical marijuana is relatively new, there are few cases interpreting Pennsylvania’s medical marijuana law with regard to employment. This is why a recently filed Pennsylvania lawsuit could have