The National Labor Relations Board (”NLRB”) General Counsel, Jennifer Abruzzo, issued a Memorandum to the NLRB regional offices stating that student athletes at private universities should be considered employees under federal labor law.
Abruzzo cautioned in the Memorandum that she intends to pursue labor charges against private institutions that misclassify the players as “student athletes:”
“In addition, because those Players at Academic Institutions are employees under the Act, misclassifying them as “student-athletes”, and leading them to believe that they are not entitled to the Act’s protection, has a chilling effect on Section 7 activity. Therefore, in appropriate cases, I will pursue an independent violation of Section 8(a)(1) of the Act where an employer misclassifies Players at Academic Institutions as student-athletes.”
The Memorandum would not apply to public universities (such as the University of Georgia) due to jurisdictional limitations of the NLRB.
National Labor Relations Act: Significance to Non-Unionized Workforces
Employers should pay close attention to this issue as it illustrates the current labor board’s mission to drastically expand the reach of the National Labor Relations Act.
In her first Memorandum dated August 12, 2021, Abruzzo identified 11 board case areas under the Trump administration that she intends to reverse. These cases deal with issues that can impact even non-unionized employers such as:
– Confidentiality rules;
– Non-disparagement rules;
– Social media rules;
– Media communication rules;
– Civility rules;
– Respectful and professional manner rules contained in employee handbooks; and
– The scope of confidentiality and non-disparagement clauses in separation agreements.
Employers: Stay tuned as the reach of the National Labor Relations Act continues to unfold in 2021 and beyond.
As always, if you have questions, please let me know.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.