Category: NLRA

  • National College Players Association Files Charges Seeking Employee Status for Student-Athletes – CUPA-HR

    National College Players Association Files Charges Seeking Employee Status for Student-Athletes – CUPA-HR

    by CUPA-HR | February 17, 2022

    On February 8, the National College Players Association (NCPA), an advocacy association for college athletes, filed unfair labor practice charges with the National Labor Relations Board (NLRB) against the University of Southern California, the University of California, Los Angeles (UCLA), the Pac-12 Conference and the National Collegiate Athletic Association (NCAA).

    The charges allege that the employers have violated the National Labor Relations Act (NLRA) by “repeatedly misclassifying employees as ‘student-athlete’ nonemployees” and “by maintaining unlawful rules and policies in its handbook, including restricting communications with third parties.” The charges mark the launch of the NCPA’s #JforJustice campaign and aim “to affirm college athlete employee status for every [Football Bowl Subdivision (FBS)] football player and Division I basketball player at every public and private university in the nation,” per an NCPA statement.

    This is the latest development regarding issues surrounding employment status of student-athletes since NLRB General Counsel Abruzzo issued a memorandum last September stating her position that student-athletes are employees under the NLRA and are therefore afforded all statutory protections as prescribed under the law. In that memo, Abruzzo stated that it was her intent to “educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences and the NCAA” about her position in future appropriate cases.

    The NCPA charges potentially provide Abruzzo with a case she can present to the NLRB to consider granting collective bargaining rights to college athletes. In 2015, the last time the NLRB considered the issue, it declined to assert jurisdiction over Northwestern football players, as doing so “would not promote labor stability [because the] board does not have jurisdiction over state-run colleges and universities” that make up the majority of the FBS. The NCPA charge seeks to overcome this jurisdictional obstacle by including the privately-held Pac-12 and NCAA as joint employers of UCLA’s athletes — a theory of liability Abruzzo said she would consider applying in appropriate circumstances.

    Now that the charges have been filed, an NLRB regional director will review the case and determine whether formal action should be taken and presented to an administrative law judge, which would preside over a trial and issue a decision that could ultimately be taken up by the five-member board.

    CUPA-HR will be paying close attention to this case and provide members updates as it progresses.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | November 17, 2021

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Federal Appeals Court Panel Expresses Skepticism Regarding New York City Teachers’ Challenge to the Constitutionality of the New York City Vaccine Mandate for All Public School Teachers

    In a case which could have ramifications for public and private college and university vaccine mandates, a group of New York City teachers recently argued that the New York City mandate that all public school teachers have at least one vaccine shot violates their basic rights under the U.S. Constitution. The case was heard by the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont. The New York City mandate requires all teachers to have at least one vaccine shot in order to continue teaching or be suspended without pay. The mandate allows them to continue to receive benefits during the suspension, but bars them from teaching elsewhere (Maniscalco v. New York City Department of Education (2nd Cir: Argued Oct 14, 2021)). The case is one of dozens across the country contesting the validity of public and private employer vaccine mandates.

    The teachers’ counsel argued that teaching is a profession and the vaccine mandate takes away the fundamental right of teachers to teach. One of the federal appeals court judges commented during the argument that she was having difficulty understanding why the mandate was “irrational” as argued by the teachers’ counsel.

    Bipolar Teacher Loses Her Disability Discrimination Appeal Following Her Discharge for Violating the School District’s Rules on Sharing Religious Beliefs

    In a case having general applicability to the Americans With Disabilities Act termination claims and requests for accommodation brought in the higher education context, the U.S. Court of Appeals for the Sixth Circuit, covering Michigan, Ohio, Kentucky and Tennessee affirmed a school district’s decision to terminate a teacher for inappropriate communication with students during her paid suspension. The appeals court concluded that a reasonable jury could not conclude that the teacher’s misconduct caused her discharge, notwithstanding her diagnosis of suffering from bipolar disorder (Lockhart v. Marietta City Schools (6th Cir., No. 20-4308, 10/15/21)).

    The plaintiff was put on paid leave after telling her students that she had a deeply religious experience while shoveling snow in which she lost consciousness, was carried away and now God was speaking through her. She was instructed not to communicate with students while on paid leave. She violated the instruction and sent a student a 12-page letter telling them not to trust school administrators and to “Trust me, I am the one you need to trust. I dearly love you, have they told you they love you?”

    The teacher argued that the school district should have accommodated her disability rather than terminate her. The court concluded that the school district was not required to excuse her misconduct during leave and that she repeatedly violated the terms of her administrative leave before even remotely asking for an accommodation request.

    Some States May Alter, Change and/or Challenge OSHA’s New Vaccine Rules

    Some states, through their respective attorney generals, have signaled that they may contest of try to alter the Occupational Safety and Health Administration (OSHA)’s vaccine mandate. OSHA allows by agreement some 26 states plus Puerto Rico and the U.S. Virgin Islands to adopt their own workplace safety rules. Those states include seven states with Republican attorney generals who have taken the position that a vaccine mandate is “disastrous and counterproductive.” The attorney generals of Alaska, Arizona, Indiana, Kentucky, South Carolina, Utah and Wyoming have written letters to OSHA stating that such a vaccine mandate does not meet the “grave danger” threshold needed to justify such an Emergency Temporary Standard. An additional two states, Texas and Arkansas, have taken steps to avoid a potential OSHA vaccination rule. Numerous challenges have been filed in federal court.

    The cases challenging the new OSHA rules will be consolidated for one federal appeals court to rule on. Ultimately, the Supreme Court may step in.

    Student Workers at Private University Seek Union Formation and Bargaining Rights Under the National Labor Relations Act

    Recently, a student worker organizing committee at Kenyon College filed a petition with the National Labor Relations Board (NLRB) to represent 600 student employees at the Ohio college. The committee is asking the NLRB to conduct a union representation election for the proposed student worker bargaining unit. The current NLRB has apparently abandoned its position to limit union organizing among student workers at private colleges and universities over which the NLRB has jurisdiction.

    In March 2021, the then Republican-controlled NLRB abandoned a proposal to block student workers at private colleges and universities form organizing. The NLRB’s current Biden administration appointed general counsel has since publicly backed expanding labor rights for student workers.

    Sex Harassment Case for Employee Perceived as Gay Is Headed to Trial Based on Alleged Physical Attacks and Discrimination for Failure to Conform to Sexual Stereotypes

    A heterosexual employee who was mistakenly perceived as gay and harassed by a supervisor because of the misperception received the right to proceed to a trial over his sex harassment claim. The trial court cited the Supreme Court decision in Bostock v. Clayton County and following decisions which have interpreted Title VII to protect against discrimination based on sexual orientation, gender identity, and/or failure to conform to sexual stereotypes (Roberts v. Glenn Industrial Group ( 2021 BL 404870. W.D.N.C. No.3:17- cv-00747, 10/21/21)).

    The plaintiff complained and the court agreed that the alleged harassment — if proven — was severe and pervasive and included physical assault by his supervisor in which his safety glasses were knocked off and he was put in a choke hold by his supervisor.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | October 20, 2021

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Several States Consider Legislation Aimed at Softening Federal Workplace Vaccine Mandates

    The Arkansas legislature recently passed legislation which would soften the federal employer workplace vaccine mandate. The legislation would allow workers in Arkansas to opt out of the mandate if they show a negative COVID-19 test weekly or present a positive antibody test twice a year. The legislation would bar employers from terminating employees who followed the testing protocol. Ohio and Texas are considering similar legislation. Montana enacted a statute that prohibits employer mandates of shots that are under emergency use authorization and have not cleared final approval.

    State laws which directly conflict with federal statutes are arguably preempted and unenforceable under the U.S. Constitution’s Supremacy Clause. Depending on how the state statute is worded there are gray areas which will be subject to litigation. For example, a state could argue that an employer may well be able to adhere to the state statute and the final Occupational Safety and Health Administration rule depending on how that final rule is written.

    NLRB General Counsel States That Political and Social Justice Advocacy in Black Lives Matter Demonstrations and Demonstrations Opposing Crackdowns on Undocumented Workers are Protected Concerted Activity Under the National Labor Relations Act 

    National Labor Relations Board (NLRB) general counsel stated in a webinar hosted by Cornell University on Wednesday, October 7, that Black Lives Matter protests and demonstrations against crackdowns on undocumented workers are protected under the National Labor Relations Act (NLRA) as protected concerted activity. The general counsel referred to the case the NLRB brought against Home Depot in Minneapolis because it disciplined workers who refused to cease displaying political messages on their aprons at work,  including an employee who was terminated for displaying a “BLM” slogan. The NLRB in that case also accused Home Depot of unlawfully threatening employees with unspecified consequences if they engaged in group activities regarding racial harassment.

    Home Depot has denied any violation of the NLRA and in a statement said it does not tolerate workplace harassment, takes these matters seriously, and is committed to diversity and respect. Home Depot takes the position it has every right to refuse to allow its employees to engage in conduct which will spark conflict and possibly confuse customers. It added it has a right to refrain from allowing its employees to engage in speech in this way while serving customers.

    NLRB General Counsel Asserts That College Athletes are Employees Under the NLRA and Should be Accorded the Right to Unionize and Collectively Bargain

    The top lawyer and general counsel for the National Labor Relations Board (NLRB), Jennifer Abruzzo, asserted in a public memo issued on September 27 that college athletes are employees and should be afforded the right to engage in protected concerted activities, including the right to unionize and collectively bargain. Abruzzo has the authority to bring a test case before the five-member NLRB who have exclusive jurisdiction to decide whether or not college athletes are employees and whether they have a right to unionize and participate in concerted activities protected under the National Labor Relations Act (NLRA). The NLRB does not have jurisdiction of public colleges and universities, only private colleges and universities. However, Abruzzo may attempt to assert jurisdiction over public college athletes under the theory that the National Collegiate Athletic Association (NCAA), which is private, is a joint employer of public college athletes and can negotiate certain minimum guarantees under a collective bargaining agreement. This is an untested legal theory.

    The issue has been under increasing debate, most recently as a result of a Supreme Court decision criticizing the stance of the NCAA in limiting student compensation of athletes on antitrust grounds in NCAA v. Alston. The Supreme Court did not address the issue of whether student athletes are employees under the NLRA. Adding to the controversy is that it is not unusual for a college football coach to earn in excess of $1 million per year.

    CUPA-HR will continue to monitor developments in this area.

    Several Colleges File an Appeal of a Federal Court Decision to Allow Student-Athletes to Proceed to Trial Over Whether They are Employees Under the Fair Labor Standards Act and Therefore are Due Minimum Wage and Overtime Payments

    A federal district court trial judge recently ruled that student-athletes are employees under the federal Fair Labor Standards Act and are therefore entitled to minimum wages and overtime payments. The judge used the same multi-factor approach used in cases where unpaid interns have been successfully sued and were entitled to pursue a claim of minimum wages and overtime payments (Johnson v. NCAA (E.D. Pa. No. 19-cv-19350, 9/29/21)).

    A group of institutions including Cornell, Fordham, Villanova, Layfette College and Sacred Heart University has asked the eastern district of Pennsylvania judge to allow an immediate appeal to the U.S. court of appeals for the third circuit. They want to ask the third circuit to decide: (1) Are student-athletes ever employees of the schools for which they compete?; and (2) If so, under what circumstances are student-athletes considered employees of their schools?

    CUPA-HR will continue to monitor developments in this case.



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  • NLRB General Counsel Releases Memo on Employee Status for Student Athletes – CUPA-HR

    NLRB General Counsel Releases Memo on Employee Status for Student Athletes – CUPA-HR

    by CUPA-HR | September 29, 2021

    On September 29, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo released a memorandum stating her position that student athletes (or “Players at Academic Institutions,” as she refers to them in the memo) are employees under the National Labor Relations Act (NLRA) and are afforded all statutory protections as prescribed under the law. Abruzzo declares, “The broad language of Section 2(3) of the [NLRA], the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”

    Abruzzo also states that misclassifying such individuals as non-employees and leading them to believe they are not afforded protections under the NLRA has a “chilling effect” on Section 7 activity. She said she would consider this misclassification an independent violation of Section 8(a)(1) of the NLRA. Abruzzo further stated that the intent of the memo is to “educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA” about her position in future appropriate cases.

    The memo revives issues surrounding employment status of student athletes that the NLRB has previously ruled on. In March 2014, the NLRB’s Regional Director in Chicago ruled that Northwestern players receiving football scholarships are employees and have a right to organize under the NLRA. In August 2015, the NLRB released a unanimous decision dismissing the representation petition filed by a group of Northwestern football players seeking to unionize. In doing so, however, the board’s decision did not definitively resolve the issue of whether college athletes are employees and have a protected right to unionize under the NLRA. After considering arguments of both parties in the case and various amici, including CUPA-HR, the board declined to assert jurisdiction on the issue, stating that “asserting jurisdiction would not promote labor stability [because the] Board does not have jurisdiction over state-run colleges and universities, which constitute” the vast majority of the teams. The board noted, however, its “decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future.” Another issue in the Northwestern decision was the board’s lack of jurisdiction over “walk-on” players who do not receive scholarships. It remains to be seen how Abruzzo will overcome in future cases the two jurisdictional obstacles identified in Northwestern.

    CUPA-HR will keep members apprised of NLRB actions and cases that may prompt the agency to rule on the issue regarding student athlete employment status.



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