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.Continue Reading Third Circuit Holds That NCAA Athletes May Qualify as Employees Under the FLSA
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.Continue Reading NLRB Rules That Dartmouth Basketball Players Are Employees
NLRB Returns to Former Precedent on Protected Union Activity
Q. May employees use abusive language when raising grievances about working conditions?
A. In many circumstances, the answer is (again) yes. On May 1, the National Labor Relations Board (NLRB or Board) overruled its July 2020 decision that changed the standard for cases involving “abusive employee conduct” during labor disputes and negotiations, reverting back to a test that it used in some form or another for approximately 70 years. In its decision, the NLRB found that an employee did not lose National Labor Relations Act (NLRA) Section 7 protections when he used strong language and acted less than civil when raising grievances about working conditions.Continue Reading NLRB Returns to Former Precedent on Protected Union Activity
Two New NLRB Decisions Allow Employers to Limit Use of Its Email System and Preserve Confidentiality of Workplace Investigations
Q: What is the current rule on whether an employee can use our company’s email system to distribute union material? Also, are we permitted to require employees to keep workplace investigations confidential without running afoul of the National Labor Relations Act?
A: There are actually two issues that arise from your question, and both were…
NLRB Issues a Series of Employer-Friendly Decisions
Q. I heard there have been some significant National Labor Relations Board decisions recently. What do I need to know about them?
A. Over the past few months, the Board’s Republican majority has issued a series of employer-friendly decisions. They involve various topics, including expansion of employer property rights, classification of workers as independent contractors,…
NLRB Flip Flops on Browning Ferris Standard for Joint Employment (Again)
Q. What is the standard for determining whether two companies are joint employers?
A. On February 26, the National Labor Relations Board (NLRB) decided unanimously to vacate its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) (vacated at 366 NLRB No. 26). As we reported previously, in December 2017, the…
Employees’ Right to Representation During Employer Interviews
Q. I am the HR Manager for a non-union workplace and we are investigating an issue involving employee misconduct. One of the employees whom I want to interview has requested that a coworker attend the interview as his “representative.” Can we say no?
A. Yes!
While the NLRB has flip-flopped on this issue several times over the past few decades, the current ruling is that employees in non-union workplaces do not have so-called “Weingarten” rights to representation during company interviews.
Continue Reading Employees’ Right to Representation During Employer Interviews