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.
On Friday, the Supreme Court agreed to decide the issue of whether employers may include class/collective action waivers in their arbitration agreements. As we discussed in more detail here, multiple federal appeals courts have split over the issue. This has created a difficult situation for employers and employees, especially where the employer operates in multiple states. By the time the Supreme Court takes up the issue in April, there may be a ninth justice on the bench. We will continue to provide updates as new information becomes available, but in the meantime, we encourage you to visit our sister blog ADR: Advice from the Trenches and read its latest terrific post: When an Arbitration Clause Sounds Permissive But is Not – Does “May” Really Mean “Must”?
With the 9th Circuit’s late summer anti-class action waiver decision, the circuit split widened over the issue of whether employers can require employees, through an arbitration agreement, to waive their rights to bring class or collective actions against their employer. This issue will almost certainly reach the Supreme Court given the deepening divide and the Court’s previous apparent interest in addressing issues surrounding class action waivers and arbitration agreements.
The U.S. Equal Employment Opportunity Commission (EEOC) recently entered the Browning-Ferris saga, filing an amicus brief in support of the new joint employer test articulated by the National Labor Relations Board (NLRB) in August 2015. Drawing comparisons to its own joint employer test, the EEOC urges the D.C. Court of Appeals to uphold the NLRB’s pliable, fact-specific test to determine whether an entity sufficiently controls the terms and conditions of an individual’s employment to be a joint employer.
The Seventh Circuit recently became the first federal appellate court to say that employers can’t prevent class/collective actions through waivers in mandatory arbitration agreements, holding that such waivers interfere with employees’ rights to engage in concerted activity in violation of the National Labor Relations Act. The court’s holding in Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016), creates a circuit split on this issue and calls into question the effectiveness of such waivers for employers with employees working in states covered by the Seventh Circuit (Wisconsin, Illinois and Indiana).
Earlier this month, the NLRB struck down a couple of facially-neutral workplace civility rules in an employer’s Code of Conduct. Ho hum, business as usual. (We have written extensively about the Board’s crusade against what it considers overbroad work rules. See, for example, our posts here, here and here) What is fascinating, however, about this otherwise unremarkable decision is the spirited dissent penned by Member Philip A. Miscimarra, calling for the NLRB to overrule Board precedent which renders unlawful all employment policies, work rules and handbook provisions whenever employees could “reasonably construe” the language to prohibit the exercise of rights afforded by National Labor Relations Act Section 7, which protects “concerted” activities that employees engage in for the purpose of “mutual aid or protection.” Rather, as detailed below, Member Miscimarra proposes a balancing test, which would take into consideration, at minimum, (i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.
“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.
This is the first installment of a series regarding legal issues affecting college athletics that this blog will run during this year’s NCAA basketball tournament.
Two horrible March Madness brackets ago, we analyzed the myriad of legal and operational challenges that could change the face of intercollegiate athletics. The smoke has begun to clear on one critical issue – student-athletes have not been granted standing to assert rights as employees. Interestingly, the recent decisions involving the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) on this issue have come at a time of expanding rights for student-athletes.
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.
My colleague Tyrone Thomas, was quoted in the Law360 article entitled College Player Compensation Issue Rages on Despite Reforms in which he analyzes the impact of education-based reforms made by several NCAA conferences may have on existing legal matters that are challenging the amateurism model of college athletics. The article examines the precedent set by the O’Bannon v. NCAA ruling in 2015 and outlines other legal efforts to compensate student-athletes.