As of this writing, it has been over 850 days since the UConn women’s basketball team has lost a game. When the Huskies last tasted defeat (in an overtime thriller to Stanford on November 17, 2014), football players at Northwestern University were pursuing their rights to collectively bargain after a ruling by the NLRB regional director in Chicago held they were statutory employees. While the undefeated nature of women’s basketball in Storrs, CT has been a constant, the NLRB changed the game for Northwestern football players by declining to assert jurisdiction. However, there remains a feeling in certain quarters of college sports that some form of pay to student-athletes is inevitable.
In a setback to private colleges and universities, the National Labor Relations Board ruled on August 23, 2016 that student assistants have unionization and collective bargaining rights under the National Labor Relations Act. In so ruling, the Board reversed its 2004 decision in Brown University, in which it held that graduate students are not employees under the NLRA, and therefore do not have unionization rights. The immediate effect of the new Columbia University holding is that graduate and undergraduate student assistants will be able to unionize. The far-reaching decision has the potential to transform the student assistant-university relationship, as well as the collegiate learning environment.
While graduate student unions are commonplace at many public colleges and universities (as students’ unionization and collective bargaining rights at public institutions are governed by state law), the Columbia decision expands unionization and collective bargaining rights to student assistants at private colleges and universities, including to undergraduate student assistants and to student assistants who receive research funding from external grants. This decision – which fundamentally injects NLRA considerations into the relationship between student and university – has important implications for private colleges and universities and their employment of student assistants.
My colleague Natalie Young, was quoted in a Turnarounds & Workouts article entitled, “Trump Wins Again: Debtor-Employers Allowed to Reject Expired CBAs”, in which she explains the bankruptcy court’s decision to allow Trump Entertainment to reject expired collective bargaining agreements. The article examines the factors that influenced the court’s ruling, and outlines the requirements necessary for a debtor-employer to successfully reject an expired CBA during bankruptcy.
Last week, Browning-Ferris Industries, the California-based waste management company, appealed two decisions issued by the National Labor Relations Board related to the definition of joint employer. Its appeal to the U.S. Court of Appeals for the D.C. Circuit represents just the latest chapter in an ongoing saga that began with a momentous ruling by the NLRB this past August. The outcome of this appeal could have serious implications for affected companies, workers and other stakeholders.
It is a familiar scenario: a company is on the verge of bankruptcy, bound by the terms of a collective bargaining agreement (CBA), and unable to negotiate a new agreement. However, this time, an analysis of this distressed scenario prompted a new question: does it matter if the CBA is already expired, i.e., does the Bankruptcy Code distinguish between a CBA that expires pre-petition versus one that has not lapsed?
Last week, the National Labor Relations Board (the “Board”) voted 3-1 to reconsider its decision in Brown University, 342 NLRB 483 (2004) that graduate teaching and research assistants are not employees under the National Labor Relations Act (the “Act”) and, therefore, not entitled to collective bargaining rights. Many predict that the current Board will reverse Brown, opening up the door to graduate student unionization among private non-profit institutions.
The National Labor Relations Board, in one of its first applications of the Browning-Ferris decision, gave hope to non-union contracting entities engaged in franchising and subcontracting relationships. After an extensive fact-intensive analysis, the Board determined that ACECO, a demolition and remediation contractor was not a joint employer with Green Jobworks, its staffing agency.
In a mild surprise given the current constitution of the Board (read – majority appointed by President Obama), the NLRB declined to assert jurisdiction in ruling on the petition of Northwestern University’s scholarship football players to unionize. However, in a display of special teams not seen on a football field in Evanston, Illinois since the days of John Kidd, the NLRB reached its decision without determining if scholarship players were “employees” under the National Labor Relations Act. Even with this limitation, it is clear competitive balance considerations for NCAA Division I sports has received great deference as a policy matter in a legal dispute.
These days most employers manage a vast amount of electronic information about their employees, including the employees’ personal identifying information. But, what obligations do employers have to unionized employees with respect to managing that information and bargaining with them in the event of a breach of their private information?
I was quoted in a SHRM Online article entitled Measles Outbreak Raises Compliance Questions, in which I respond to common HR questions employers may have in the wake of the measles outbreak.