Q: Are student athletes considered employees under the Fair Labor Standards Act (FLSA)?

A: Not under current law, but it is widely suspected that before long, courts will deem at least some types of student athletes to be employees under the FLSA. Courts determine whether an employment relationship exists under the FLSA by looking at whether the “economic realities” of the relationship are consistent with employment (although there is no agreement among the circuit courts of which test best determines these economic realities). In the 2021 decision NCAA v. Alston, the Supreme Court characterized student athletes as participants in a labor market for purposes of federal antitrust laws. The Alston opinion left little reason to doubt that the Court would arrive at the same conclusion when considering the “economic reality” of student athletes as employees under the FLSA. The bigger question is where the Court will ultimately draw a line to separate student athlete-employees from truly amateur sports. The Third Circuit is currently considering an appeal that raises this very question, which may be the vehicle by which this appears before the Supreme Court.

High performers are crucial to organizational success but often are accompanied by challenges and sometimes even legal risks. Listen in as Partners Tracey Diamond and Evan Gibbs chat with Shiftsmart Senior Vice President of Operations Kyle Smialek about the popular movie Top Gun Maverick and creative ways to get the best out of high performers.

Published in Law360 on July 19, 2023. © Copyright 2023, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.

While many individuals are excited about the proliferation of state laws providing for medical and recreational use of marijuana across the country, inconsistencies in these state laws have made it difficult for employers to put in place consistent policies and practices on testing for marijuana as a condition of employment, upon reasonable suspicion, and post-accident. Employers are being forced to revisit their drug-testing policies not just because of changes to their state’s laws regarding medical and recreational use of marijuana, but also because it is becoming increasingly difficult to find employees who have not used, or do not use, marijuana. If employers want to continue testing for marijuana in states where use is legal, policies must be drafted carefully to account for the continued evolution of the law in this area.

What effects can employee burnout have on your company? Does your productivity, work product, and overall employee morale suffer when there is employee burnout? Can employee burnout lead to safety issues and a potential lawsuit? Listen in as partners Tracey Diamond and Evan Gibbs chat with Southern Company Associate General Counsel Kristie Klein to talk about the popular Netflix TV show Beef, the soothing effects of puppies, and creative ways to avoid employee burnout.

Q: Can sexually graphic, misogynistic music played in the workplace be considered sexual harassment even if it is not directed at a particular employee and found offensive by employees of both sexes?

A: Yes. On February 9, the Ninth Circuit Court of Appeals concluded in the case of Sharp v. S.S. Activewear that sexually explicit, misogynistic music broadcasted throughout the workplace can constitute sex-based harassment in violation of Title VII.

Do companies that use workplace surveillance tools to make hiring and firing decisions risk violating the Fair Credit Reporting Act (FCRA)? According to the Consumer Financial Protection Bureau (CFPB or Bureau) in a recent comment, the answer to that question is yes. The Bureau’s official comment comes in response to a request for information issued by the White House’s Office of Science and Technology Policy on the impact of automated tools used by employers to monitor and evaluate workers. The CFPB’s position that the FCRA applies to automated worker surveillance tools is consistent with the Bureau’s March 2023 request for information on data brokers, discussed here, to determine whether the FCRA applies to modern data surveillance practices.

What does your management style say about you? Do you demand perfection from your team? Is perfectionism a double-edged sword? Partners Tracey Diamond and Evan Gibbs sit down with Elise Holtzman, founder of The Lawyer’s Edge, to talk about the classic movie, The Devil Wears Prada, and the difference between pursuing perfectionism and pursuing excellence.

Q. Has the U.S. Equal Employment Opportunity Commission (EEOC) issued any recent guidance regarding employers’ use of artificial intelligence (AI)?

A. Yes. On May 18, the EEOC released new guidelines, explaining how employers’ use of AI could trigger a federal employment law violation. This development makes the government’s position clear: Employers using AI in the workplace run the risk of violating antidiscrimination law — specifically, Title VII of the Civil Rights Act of 1964.

Sometimes it’s not what you say, but how you say it. What’s the best approach to managing and getting the most out of your employees? Are there gender and generational challenges to administering performance management effectively?  Is communication and training the answer? Partners Tracey Diamond and Evan Gibbs sat down with Laura Yehuda, a Principal with Ernst & Young LLP’s People Advisory Services, to talk about the popular TV show, The Bear, hoagies versus subs, and best practices when delivering performance messages.

How do you determine when an employee is impaired at work? How do you detect drug use in a remote work environment? When can you ask an employee to take a drug test? Partners Tracey Diamond and Evan Gibbs sat down with Squarespace Senior Counsel Larissa Boz to talk about the popular Max series Industry and managing employee performance and drug use.