Tag: NLRB

  • House Education and Workforce Committee Holds Hearing on NLRB and Student Athletes

    House Education and Workforce Committee Holds Hearing on NLRB and Student Athletes

    by CUPA-HR | April 10, 2025

    On April 8, the House Education and Workforce Committee held a hearing titled, “Game Changer: The NLRB, Student-Athletes, and the Future of College Sports.” The hearing focused on the employment classification status of student athletes at institutions of higher education.

    The witnesses at the hearing included Daniel L. Nash, shareholder at Littler; Morgyn Wynne, former softball student athlete at Oklahoma State University; Ramogi Huma, executive director at the National College Players Association; and Jacqie McWilliams Parker, commissioner at the Central Intercollegiate Athletic Association.

    Majority Concerns with Employee Classification

    Republican committee members argued that the classification of student athletes as employees could alter college athletics to the detriment of institutions and student athletes alike. Confirmed by witness testimony, the majority discussed that employee classification for and unionization by student athletes could trigger unintended consequences for the athletes, such as fewer benefits, losing scholarships based on poor performance, having scholarships taxed as taxable income, and losing training support, mental health services, and media and career support. Further, they highlighted that employee classification could strain athletic department resources; McWilliams Parker stated that athletic departments would need to consider whether they could continue to sustain certain sports and provide scholarships to students.

    The majority also discussed the legislative and regulatory landscape surrounding this issue. In his opening statement, Chair Rick Allen (R-GA) discussed the memo from former General Counsel of the National Labor Relations Board (NLRB) Jennifer Abruzzo regarding the Biden-era NLRB’s position that student athletes are employees and are afforded statutory protections under the National Labor Relations Act (NLRA). Notably, the memo has since been revoked by the Trump administration’s acting general counsel at the NLRB. Further, in response to questioning from the chair of the full committee, Tim Walberg (R-MI), Nash clarified that existing labor laws are clear that revenue received by an organization is not a factor in determining employee status.

    Representative Lisa McClain (R-MI) also discussed her bill, the Protecting Student Athletes Economic Freedom Act, which would codify into law that student athletes are not employees of institutions, athletic conferences or athletic associations, as a solution to the majority’s concerns.

    Minority Argue for Greater Protections for Student Athletes

    Committee Democrats argued that student athletes require greater protection from exploitation. They argued that student athletes generate revenue for their institutions of higher education, conferences and the National Collegiate Athletic Association (NCAA), but fail to be compensated for their work and the amount of time they commit to their team. The members claimed that classifying student athletes as employees and allowing those athletes to collectively bargain would end the exploitation. Huma’s testimony supported committee Democrats advocating that student athletes should be equally able to benefit financially from the revenue they generate.

    CUPA-HR will monitor for future developments on the status of student athletes as discussed during this hearing and keep members apprised of significant policy updates.



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  • NLRB Issues Memo Outlining Higher Ed Institutions’ Disclosure Obligations under NLRA and FERPA – CUPA-HR

    NLRB Issues Memo Outlining Higher Ed Institutions’ Disclosure Obligations under NLRA and FERPA – CUPA-HR

    by CUPA-HR | August 7, 2024

    On August 6, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo, “Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act.” The memo was issued to all NLRB regional offices and is meant to provide guidance to institutions of higher education clarifying their obligations “in cases involving the duty to furnish information where both statutes may be implicated.”

    The memorandum outlines how institutions can comply with requests by unions representing their student workers for information that may be covered under FERPA, the federal law that protects students’ privacy in relation to their education records and applies to institutions that receive federal education funds. Under the NLRA, employers are required to provide certain information to unions that may be relevant to their representational and collective bargaining obligations, but this requirement can come into conflict with institutions’ obligations under FERPA.

    In situations where the employer believes certain records requested by the union may be confidential and covered under FERPA, the memo outlines the steps institutions must take to comply with their disclosure obligations.

    1. “The institution must determine whether the request seeks education records or personally identifiable information contained therein.”

    Institutions must be prepared to “explain why and substantiate with documentary evidence, if available, that the student-employee is employed as a result of their status as a student to the union,” as opposed to a traditional employee whose records are not protected by FERPA. The memo specifies that, if the union’s request includes some documents not covered by FERPA, the employer must provide those documents to the union “without delay, even if FERPA applies to other parts of the request.”

    1. “If a request seeks information protected by FERPA, the institution must offer a reasonable accommodation in a timely manner and bargain in good faith with the union toward a resolution of the matter.”

    The memo puts the burden to offer an alternative on the employer. The employer cannot “simply refuse to furnish the requested information,” but it must offer a “reasonable accommodation and bargain in good faith toward an agreement that addresses both parties’ interests.”

    1. “If the parties reach an agreement over an accommodation, the institution must abide by that agreement and furnish the records.”

    If an agreement is not reached, the memo specifies that the union can file an unfair labor practice charge against the institution. The memo then gives the NLRB the authority to find an appropriate accommodation “in light of the parties’ bargaining proposals.”

    Abruzzo also provided a “FERPA consent template” that she advocates institutions provide to student-employees during the onboarding process. The template, if signed by the student employee, “would permit an institution covered by FERPA to disclose to a union, consistent with FERPA, any employment-related records of a student that are relevant and reasonably necessary for each stage of the representation process.” Abruzzo argues the template would help “reduce delay and obviate the need to seek students’ consent at the time a union seeks to represent employees or submits an information request to carry out its representative functions.”

    CUPA-HR will keep members apprised of updates following this guidance and other updates from the NLRB.



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  • NLRB Higher Education Union Election Data for 2023 – CUPA-HR

    NLRB Higher Education Union Election Data for 2023 – CUPA-HR

    by CUPA-HR | March 5, 2024

    During calendar year 2023, union organizing continued to rise at institutions of higher education. Data from the National Labor Relations Board on union organizing show that 31.2% of all private-sector workers who successfully unionized in 2023 were employed by institutions of higher education. Public institutions also saw considerable union activity, though this is not reflected in NLRB data.*

    To provide an update regarding collective bargaining at private colleges and universities across the country, CUPA-HR’s government relations team has compiled the following NLRB data** from 2023 and early 2024 to summarize organizing activity.

    Organizing Efforts at Private Institutions in 2023

    • There were 132,303 workers in bargaining units that held elections in 2023. Of this total, 32,477 workers were from institutions of higher education.
    • There were 92,574 workers in total who joined certified bargaining units in the U.S. in 2023. Of this total, 28,859 workers were from institutions of higher education.

    Private Institution Union Drive Data in 2023

    • There were 55 union elections held at private institutions of higher education last year.
    • Of the 55 held, 48 union elections resulted in worker unionization. Again, this totaled 28,859 workers from private institutions of higher education.***
      • 20 elections included non-faculty, non-student workers with various positions.
      • 14 elections included graduate students with various positions (including two RA elections).
      • 13 elections included undergraduate students with various positions (including five RA elections).
      • Two elections included faculty.
      • Two elections included non-tenured faculty specifically.
      • Two elections included adjunct faculty.
      • Two elections included postdoctoral workers.
    • Three elections did not result in unionization. Four elections have been held at institutions, but they have not yet been closed. It is unclear why they are pending.

    Private Institution Election Data since January 1, 2024

    • So far this year, there have been eight union elections at institutions of higher education. Seven of the elections resulted in worker unionization, and one is still open for unknown reasons.
      • In the seven decided elections, 2,477 workers are included in the bargaining units.
      • In the one open case, 290 workers could be unionized.
    • Since January 1, 2024, there are seven pending petitions for unionization at institutions of higher education. In the seven pending petitions, 3,674 workers could be unionized depending on the result of the elections.

    CUPA-HR will continue to monitor this NLRB data and keep members apprised of future higher education union organizing trends.

    *The NLRB is a federal agency and only has jurisdiction over private employers, which includes private higher education institutions. Public institutions handle collective bargaining activity with their state and local labor relations agencies. CUPA-HR regularly tracks activity from the NLRB and is providing an overview of union activity at private institutions, but members at public institutions are encouraged to share union activity with the CUPA-HR government relations team as it occurs.

    **To compile the data, CUPA-HR searched for “Election Results” and “R Case Reports” that included the search terms “university,” “college,” and “school” during the calendar year 2023 and from January 1, 2024 to March 4, 2024.

    ***The grouped data below do not add up to 48 total elections because some units included multiple groups (i.e. undergraduate and graduate students, tenured and non-tenured faculty, etc.).

     



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  • NLRB Issues Joint Employer Final Rule – CUPA-HR

    NLRB Issues Joint Employer Final Rule – CUPA-HR

    by CUPA-HR | October 27, 2023

    On October 26, 2023, the National Labor Relations Board (NLRB) released its final rule amending the standard for determining joint employer status under the National Labor Relations Act (NLRA). The rule replaces the board’s 2020 final rule on the same issue and greatly expands joint employer status under the NLRA.

    The final rule establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation; work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; and assignment and work rules. Today’s final rule finds that either indirect control or reserved control may stand alone as sufficient for finding that a joint employer relationship exists. The final rule specifically states that an entity may be considered a joint employer if it possesses the authority to control one or more essential terms and conditions of employment, regardless of whether that authority is exercised, or if it exercises the power to indirectly control one or more terms and conditions of employment, regardless of whether that power is exercised directly. This is a departure from the 2020 rule, which found that an entity must exercise substantial direct and immediate control over essential terms and conditions of employment to be considered a joint employer.

    Joint employment has recently been a focal point for higher ed institutions as disputes around the worker classification of student-athletes continue. Last year, an NLRB regional office announced it would be pursuing a complaint by a student-athlete advocacy group that filed an unfair labor practice charge against that the University of Southern California, the Pac-12 Conference, and the NCAA, alleging that the three entities are joint employers who violated the NLRA by “repeatedly misclassifying employees as ‘student-athlete’ non-employees.” The case is set to be heard by an administrative law judge in November, but a final decision could take years to come to fruition.

    This final rule could have significant implications for private institutions, as they fall under the NLRB’s jurisdiction. Public institutions are not impacted by this rulemaking, as the NLRB does not have jurisdiction over public entities.

    CUPA-HR is assessing the final rule and will provide members with more information as it becomes available.



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  • NLRB General Counsel Issues Memo on Recent Severance Agreement Ruling – CUPA-HR

    NLRB General Counsel Issues Memo on Recent Severance Agreement Ruling – CUPA-HR

    by CUPA-HR | March 27, 2023

    On March 22, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo to all field offices with guidance on the Board’s recent decision in McLaren Macomb, in which the Board decided that employers cannot offer employees severance agreements that require employees to waive rights under the National Labor Relations Act (NLRA), such as confidentiality and non-disparagement requirements. According to the NLRB’s press release, the memo is to be used as guidance to assist field offices responding to inquiries from workers, employers, labor unions and the public about implications stemming from McLaren Macomb.

    The memo offers guidance on the decision’s scope and effect of the McLaren Macomb decision. In the memo, Abruzzo stated that the decision has retroactive application, and she directed employers who may have previously offered severance agreements with “overly broad” non-disparagement or confidentiality provisions to contact employees to advise them that such provisions are now void and will not be enforced. Abruzzo also clarified that confidentiality clauses that are “narrowly tailored” to restricting dissemination of proprietary information or trade secrets may still be lawful “based on legitimate business justifications,” and that non-disparagement clauses that are limited to “employee statements about the employer that meet the definition of defamation as being maliciously untrue (…) may be found lawful.”

    With respect to supervisors, Abruzzo specified that supervisors are not generally protected by the NLRA, but she added that they are protected from retaliation if they refuse to offer a severance agreement with broad non-disparagement or confidentiality provisions to their employees.

    As a reminder, CUPA-HR will be hosting a webinar on the McLaren Macomb decision Thursday, March 30 at 1:00 p.m. ET. The webinar will cover the McLaren Macomb decision and this subsequent memo, and presenters will discuss how the decision may fundamentally change how and when colleges and universities may use confidentiality and non-disparagement provisions. Registration is required for participation, but free to all CUPA-HR members.



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  • NLRB Issues Decision Blocking Certain Provisions in Severance Agreements, CUPA-HR to Hold Webinar – CUPA-HR

    NLRB Issues Decision Blocking Certain Provisions in Severance Agreements, CUPA-HR to Hold Webinar – CUPA-HR

    by CUPA-HR | March 20, 2023

    On February 21, the National Labor Relations Board (NLRB) issued its decision in McLaren Macomb deciding that employers cannot offer employees severance agreements that require employees to waive rights under the National Labor Relations Act (NLRA), such as confidentiality and non-disparagement requirements.

    The Board explained in its press release on the decision that if an employer offers a severance agreement with a provision that requires the employees to broadly give up their rights under the Act, the employer violates the NLRA. The simple offering of the agreement “is itself an attempt to deter employees from exercising their statutory rights, at a time when employees may feel they must give up their rights in order to get the benefits provided in the agreement.” NLRB Chair Lauren McFerran said “It’s long been understood by the Board and the courts that employers cannot ask individual employees to choose between receiving benefits and exercising their rights under the National Labor Relations Act.”

    McFerran issued the decision alongside NLRB Democratic Members Gwynne Wilcox and David Prouty, while Republican Board Member Marvin Kaplan dissented. The decision reverses two Trump-era NLRB decisions, Baylor University Medical Center and IGT d/b/a International Game Technology. Both of these decisions determined severance agreements with confidentiality and non-disparagement provisions not unlawful in and of themselves.

    Importantly, this decision does not apply to public sector employees as the NLRB only has statutory jurisdiction over private sector employees. Additionally, the ruling does not apply to employees in supervisory or managerial positions.

    CUPA-HR will hold a webinar on this rulemaking and its potential impact on higher ed institutions on March 30, 2023 at 1:00 p.m. ET. Registration is required for participation, but free to all CUPA-HR members. To register, please visit the event’s web page.



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  • NLRB Region Files Complaint Against the NCAA, Pac-12 and the University of Southern California – CUPA-HR

    NLRB Region Files Complaint Against the NCAA, Pac-12 and the University of Southern California – CUPA-HR

    by CUPA-HR | December 21, 2022

    On December 15, the National Labor Relations Board (NLRB)’s Region 31 announced it will pursue a complaint against the National Collegiate Athletic Association (NCAA), the Pac-12 Conference and the University of Southern California (USC) for violating the National Labor Relations Act (NLRA) by misclassifying student-athletes as non-employees, unless the matter is settled. On February 8, the National College Players Association filed an unfair labor practice (ULP) charge with the region alleging that USC; the University of California, Los Angeles; the Pac-12 Conference; and the NCAA are “joint employers” who violated the NLRA by “repeatedly misclassifying employees as ‘student-athlete’ non-employees.”

    Region 31 is part of the NLRB’s Office of General Counsel, which is responsible for receiving charges from employees, unions or employers that allege violations of the NLRA. The region decides whether to issue a complaint on charges it receives. If the region does not issue a complaint, the matter is generally closed. If the region decides to file a complaint, however, the case is litigated before an administrative law judge.

    Region 31’s complaint is the latest development regarding the employment status of student-athletes. The National College Players Association’s February 8 charge followed NLRB General Counsel Jennifer Abruzzo’s memorandum issued last September in which she argues that student-athletes are employees under the NLRA and are therefore afforded all statutory protections as prescribed under the law.

    The region’s decision in response to the February ULP charge means the NCAA, Pac-12 Conference and USC can either settle or litigate the case. A final ruling could take years to come to fruition, however, as both parties in the case could appeal the decisions made by the administrative law judge to the five-member NLRB. The NLRB’s decision can be appealed to federal appellate courts  and from there all the way up to the Supreme Court.

    The news of the region’s complaint follows the announcement earlier in the day that Massachusetts Governor Charlie Baker would be the NCAA’s next president in March after his last term in office expires in January. Baker, a Republican, is known for his work to build bipartisan consensus on policy in Massachusetts, which the NCAA may recognize as a strength as they continue to engage Congress on other issues related to student-athlete compensation. It is unclear what, if any, impact this will have on the ULP charges.

    CUPA-HR will continue to keep members apprised of this case and others involving student-athlete employment classification that may emerge in the future.



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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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