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.
“Pay no attention to that man behind the curtain. The great Oz has spoken.” Invoking the Wizard of Oz, US Secretary of Labor Thomas E. Perez and the US Department of Labor unveiled last week the finished product of its highly-anticipated union “persuader” rule, requiring employers and their advisors to report any arrangement (e.g., third-party consultants, legal counsel, etc.) to persuade employees, directly or indirectly, concerning their right to organize.
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.
Northwestern Football Players’ Unionization Drive Halted (SHRM)
My colleague, Don Schroeder was quoted in the SHRM article, “Northwestern Football Players’ Unionization Drive Halted” in which he analyzes the significance of the NLRB’s decision to decline to assert jurisdiction over the Northwestern Football Players’ unionization efforts. The article examines the nuances of the ruling and emphasizes the importance of public opinion in shaping this decision.
College Sports: Players’ rights turn to courts, maybe Congress (CBS Sports)
Don Schroeder was also quoted in the CBS Sports article, “College Sports: Players’ rights turn to courts, maybe Congress,” in which he examines the NLRB’s decision regarding Northwestern’s Football team. The article analyzes the impact that Congress could have on shaping the players’ rights movement if the cases reach the congressional level.
My colleague Tyrone Thomas was quoted in a New York Times article entitled, “Union Ruling Underlines NCAA’s Evolution” addressing The National Labor Relations Board’s ruling that Northwestern football players could not unionize. The article outlined the rationale for the NLRB’s decision and the positive reforms passed by the NCAA since Northwestern’s players filed the petition to unionize.
In a refreshing decision for employers, the D.C. Circuit Court of Appeals earlier this month tossed an eyebrow-raising NLRB decision which permitted AT&T customer-facing and publicly visible technicians to wear faux prison garb in customers’ homes and in public. Writing for a unanimous panel in Southern New England Telephone Company v. NLRB, Judge Brett Kavanaugh’s introduction is sure to earn rave reviews from employers.
The NLRB continued its assault on employee handbooks and policies, as an administrative law judge recently found several provisions in the Macy’s handbook, including the confidential information policy, to be unlawful, as employees would reasonably read them to restrict protected concerted activity. Specifically, the judge ruled: “The Respondent violated Section 8(a)(1) of the Act by unlawfully restricting its employees’ use of information regarding their fellow employees and the Respondent’s customers, the use of the Respondent’s logo, and requiring the employees to notify Respondent’s Human Resources representative prior to providing information for a government investigation.”
We have written previously about the expanding scope of social media activities that the National Labor Relations Act protects and the tight limits the NLRB places on an employer’s ability to discipline employees for work-related communications that take place online. As the Board’s latest ruling makes clear, employee social media communications that relate to working conditions or unionization will often be protected even if they are offensive, obscene or attack individual members of management personally. In Pier Sixty, LLC, 362 NLRB 59 (March 31, 2015), the NLRB upheld an administrative law judge’s decision that a catering company in New York City violated sections 8(a)(1) and (3) of the NLRA when it terminated an employee for profanely attacking and insulting a supervisor in a Facebook post two days before a union certification election.
My colleague Don Schroeder was quoted in a SHRM Online article entitled NLRB Charges Against McDonald’s Put Focus on HR, in which he comments on the NLRB’s decision to file complaints against McDonald’s USA and its franchisees due to their alleged retaliation against employees who participated in union and protected concerted activity. The article describes the aftermath of the Board’s decision and its potential impact on the definition of the joint employer doctrine.
In a 3-2 decision divided along party lines, the National Labor Relations Board has ruled that employees have a presumptive right to use their employers’ email systems during non-working time to discuss unionization and the terms and conditions of their employment. In so holding, a three-member majority of the Board explicitly overruled the Board’s Bush-era 2007 Register Guard decision in order to make “[n]ational labor policy . . . responsive to the enormous technological changes that are taking place in our society.” We explore the NLRB’s controversial decision below.
Continue Reading Did the NLRB Really Just Grant Employees the Presumptive Right to Use Employer-Provided Email Systems? We Break Down the Purple Communications Decision and What It Means for Employers.