On December 27, 2021, the National Labor Relations Board (“NLRB”) invited public briefing on a critical issue affecting employers (and especially gig economy companies and workers) regarding independent contractor status. In 2019, the republican-controlled NLRB in SuperShuttle DFW, Inc., 367 NLRB 75 (2019), made it easier for employers to prove independent contractor status by reaffirming adherence to the NLRB’s traditional common law agency test. In SuperShuttle, the NRLB found that entrepreneurial opportunity for economic gain is a relevant factor to show a putative contractor is rendering services as part of an independent business. This overruled the prior standard contained in FedEx Home Delivery, 361 NLRB 610 (2014), which made it more difficult to prove independent contractor status. The NLRB’s request for public briefing on the issue is part of a pending case involving makeup artists, wig artists and hairstylists at the Atlanta Opera, Inc., who are attempting to unionize. Given the current democratic board majority, it is possible that in 2022 the NLRB independent contractor test may revert back to the FedEx test and overrule the existing SuperShuttle test. The Frantz Ward Labor and Employment Group will continue to monitor and report on these developments.
Since the start of the pandemic, much of the discourse regarding COVID-19 and workers’ compensation has centered around questions of compensability—that is, under what circumstances contraction of COVID-19 can qualify as a compensable workers’ compensation claim, what types of benefits are available for covered employees, and what types of defenses employers may have at their avail. As more and more employers consider and implement mandatory vaccination and booster policies, additional questions have arisen regarding the fairly novel—though not entirely COVID-19-exclusive—issue of the compensability of vaccination and booster side effects.
The most common side effects associated with COVID-19 vaccinations and boosters, according to the CDC’s website here, are pain and swelling in the arm where the shot was administered and tiredness, headaches, muscle pain, chills, fever, and nausea throughout the rest of the body. Again according to the CDC, not everyone experiences all or even any of these side effects, and even those who do should feel back to normal after a few days. The CDC website also notes that rare cases of myocarditis (inflammation of the heart muscle) and pericarditis (inflammation of the outer lining of the heart) have been reported following the Pfizer and Moderna vaccines and mentions “severe allergic reactions” to any of the COVID-19 vaccines as a possibility. Of course, studies regarding the long-term side effects are ongoing and a wide range of opinions regarding possible long-term and short-term side effects can be found depending on where you look.
Even for just those common side effects lasting only a few days, there can be workers’ compensation implications. Certainly, an allergic reaction, even a minor one, can qualify as a compensable medical condition; the question for COVID-19 vaccine and booster side effects is whether it they are sufficiently connected to the employment to constitute a workers’ compensation claim. That question comes down to the nature and circumstances of the vaccination. For employees who voluntarily decide on their own to get vaccinated, there is no real connection to the employment and therefore no claim. For employees whose jobs require them to be vaccinated as part of a mandatory-vaccination policy, however, there is a direct link to their employment and there will likely be a compensable claim for adverse side effects to the vaccine. Then there is the gray area in between—employers encouraging or even offering vaccinations to their employees, but not strictly requiring them. Generally, if the vaccination is not mandatory, even if offered by the employer and administered right on the premises, side effects will likely not be compensable unless the employee can show that the vaccination was somehow made “basically” mandatory by the actions of their employer, requiring a very fact-specific analysis.
It is not all bad news for mandatory-vaccination employers in Ohio, however. Based on current evidence, it seems that the vast majority of potential claims for COVID-19 vaccine side effects will be fairly insignificant in terms of the financial exposure to employers, whether directly as self-insured employers or via impact to BWC premiums for state-fund employers. It appears that most of these side effects require little to no medical attention, with medical bills usually limited to a single hospital visit if there is any treatment at all. Moreover, for claims in Ohio, there is no compensable lost time if the claimant is out of work for less than seven days, while the most common side effects typically last no more than a few days. As such, for Ohio employers deciding whether to implement mandatory vaccination policies, the workers’ compensation exposure for vaccine side effects should not be a crucial factor in the analysis.
Over the weekend, in a 2-1 decision, the Sixth Circuit lifted the stay of OSHA’s Emergency Temporary Standard (“ETS”) regarding mandatory employee vaccination or testing requirements. The ETS was originally issued on November 5, 2021 but was stayed by the Fifth Circuit on November 6, 2021.
In its decision to lift the stay, the Sixth Circuit determined that OSHA did not exceed its statutory authority by issuing the ETS, noting that “OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.” The Sixth Circuit also determined that OSHA sufficiently demonstrated the danger that COVID-19 poses to workers and that the ETS is necessary to protect employees from that grave danger.
Shortly after the Sixth Circuit announced its decision, OSHA updated the schedule for employers to comply with the ETS’ requirements to January 10, 2022 and February 9, 2022.
As a refresher, the primary provisions of the ETS are outlined below:
- The ETS applies to employers with 100 or more employees.
- Covered employers must ensure that all employees are fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis.
- January 10, 2022: Employers must have a written vaccination policy and all other vaccine or test requirements in place.
- February 9, 2022: All employees must be vaccinated or show weekly proof of a negative COVID-19 test.
Despite the Sixth Circuit’s ruling, the future of the ETS remains unclear, as it has been reported that several appeals have already been filed to the United States Supreme Court. Certain groups have asked the Supreme Court to intervene on the case as part of its “emergency docket,” which could expedite the review process. Justice Brett Kavanaugh, an appointee of President Trump, is the Justice responsible for overseeing appeals from the Sixth circuit.
Given the political messaging behind the ETS, it is possible that it will be stayed once again in the near future. In the meantime, however, employers should exercise reasonable, good faith efforts to come into compliance with the ETS by January 10th and February 9th. Feel free to reach out to Megan Bennett, Jon Scandling or any member of Frantz Ward’s labor & employment group if you have additional questions regarding the ETS, or its current state.
A recent barrage of federal injunctions has caused substantial confusion for employers who were preparing to comply with federal vaccine mandates, including mandates involving OSHA, CMS and federal contractors. As a result, many covered employers are re-evaluating their plans to take the following points into consideration:
- The federal injunctions stop the government from forcing certain covered employers to comply with specific mandates for the time being;
- The federal injunctions do not prohibit an employer from going forward with vaccination-related programs voluntarily if the employer decides that doing so is in the best interests of its business, and if the programs comply with any applicable state and local laws;
- If a covered employer would prefer not to go forward with a mandate-compliant program at this time that was impacted by an injunction, the employer can put its program on hold pending the outcome of the court cases and/or further action by the government to modify or withdraw the mandates; and
- If an employer puts a program on hold, it should still maintain reasonable policies and procedures to advance workplace safety, including appropriate policies and procedures relating to face coverings, distancing and disinfection.
More guidance is likely to become available from the courts and the federal agencies in the days and weeks to come. If you have questions about this or other Labor and Employment issues in the meantime, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.
As we all know by now, on November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to protect workers in businesses with more than 100 employees from the Coronavirus, and on November 6, 2021, the Fifth Circuit Court of Appeals stayed enforcement of the ETS. B.S.T. Holdings, LLC, et al. v OSHA, et al., No. 21-60845.
In anticipation and with the hope that the stay will be lifted at some point and that the ETS will go into effect, on November 10, 2021, the National Labor Relations Board’s (NLRB) Office of the General Counsel, Division of Operations Management, issued a Memo (the Memo) to the NLRB’s Regional Directors, Officers-in-Charge and Resident Officers regarding how to respond to inquiries the NLRB is receiving with respect to collective bargaining obligations under the ETS.
The Memo essentially states two things: 1) that an employer must bargain with a union that represents its employees about any requirements of the ETS where the employer has discretion as to their implementation; and 2) to the extent an employer does not have discretion as to the implementation of certain requirements of the ETS, it still must bargain with the union representing its employees as to the effect of those requirements.
More specifically, the Memo states that, “Although an employer is relieved of its duty to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally so long as it has some discretion in implementing those requirements.” In other words, while OSHA may mandate certain requirements that must be followed by employers despite the existence of a collective bargaining agreement, to the extent the ETS provides employers with options as to how to implement some of the requirements of the ETS, an employer must bargain with the union representing its employees as to implementation of those requirements: “the General Counsel’s position is that covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.”
The Memo goes on to state that where an employer does not have discretion over certain requirements of the ETS, it must nevertheless bargain with its employees’ union regarding the effect of those requirements: “To the extent elements of the ETS do not give covered employers discretion, leaving aside decisional bargaining obligations, the employer is nonetheless obligated to bargain about the effects of the decision.
Today, less than two months after receiving the directive from President Biden, OSHA released its Emergency Temporary Standard that will affect two-thirds of the nation’s private workforce.
While most of the 490-page document includes detailed legal and scientific discussion (presumably in an effort to pre-empt expected legal challenges), the 15 or so pages of the ETS itself along with a detailed FAQ provide employers with answers to some, but not all of the questions anticipated by employers in the months-long lead up, as well as raising entirely new questions.
II. Are you a Covered Employer under the ETS?
The first and most basic question as to how the 100-employee threshold would be calculated and whether employers would be covered by the ETS has been largely answered through today’s materials: OSHA directs employers to make this determination as of the effective date of the standard (i.e. tomorrow, November 5, 2021 when the ETS is officially published) and should be made based on the total number of employees who work at any location an employer has in the United States, including employees who work remotely. OSHA specifically includes part-time employees, minors, and temporary and seasonal workers as those who should count towards the threshold, to the extent they are employees at any time during the six months the ETS is in effect. In addition, an employer who has less than 100 employees as of November 5, 2021, but exceeds that number at any time during the 6-months thereafter, becomes responsible for compliance with the ETS requirements for the remainder of the six-month period.
Special guidance for staffing and construction companies is included in OSHA’s FAQ.
The ETS also specifically excludes from coverage any workplace already covered under President Biden’s Executive Order mandating vaccinations for Federal Contractor and Subcontractors or the OSHA ETS previously issued in June 2021 relating specifically to healthcare workers.
In answering a question posed by many, OSHA relays its confidence in employers with 100 or more employees to bear the administrative burden of implementing the standard’s requirements in a prompt fashion, but was less confident with respect to smaller employers. OSHA does intend, however, to assess application of the mandate to smaller employers and is seeking comment to help the agency make that determination.
III. If You’re Covered, What is Required?
For covered employers, the ETS establishes various vaccination, vaccination verification, face covering, testing, paid leave and recordkeeping requirements, summarized below:
Mandatory Vaccination Policy: the crux of the ETS is to require employers to develop, implement and enforce a written, mandatory vaccination policy. In an effort to stem the threatened exodus by many unvaccinated employees from private workforces, the ETS makes clear that an employer may choose to implement a company-wide mandatory vaccination policy as soon as practicable (with language addressing legally-recognized exemptions for medical and religious reasons) or implement a policy that allows employees to choose between full vaccination or weekly testing combined with face coverings, as defined in the ETS, in indoor workspaces. OSHA also explicitly permits employers to develop and implement partial mandatory vaccination policies – in other words, policies that include mandatory vaccination requirements for only a portion of their workforce, while treating vaccination as optional for others. It also specifically notes that the ETS requirements do not apply to employees who do not interact with and are not exposed to others in the course of performing their job duties, including employees who work from home, who work exclusively outdoors, and who do not report to a workplace where other people (co-workers or customers) are present.
Vaccination Defined: OSHA’s definition of vaccination is consistent with that used by the CDC. OSHA requires “full” vaccination, which includes not only the full dose of an FDA or World Health Organization approved/authorized vaccination and compliance with the minimum recommended interval between doses, but also the two-week period following a person’s last primary dose. There are no exemptions in the ETS to vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection. The ETS treats those previously infected with COVID as unvaccinated for purposes of compliance.
Proof of Vaccination: with respect to the requisite proof of vaccination status required by the ETS, OSHA indicates that the following, among others, may be acceptable forms of proof: a record of immunization from a healthcare provider or pharmacy; a copy of a person’s signed COVID-19 vaccination card; medical records documenting or confirming vaccination; or public health or state immunization information system records/copies. For employees who are unable, for whatever reason, to produce acceptable proof, employers are permitted to require a written signed and dated statement by the employee, to include: attestation of the employee’s vaccination status (full or partial), their loss of and/or inability to produce proof of vaccination; and the language “I declare (or certify, verify, or state” that this statement about my vaccination stats is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.” The statement should also include information from the employee regarding the name and type of vaccine they received, the date(s) they received their dose(s), where they received them and the name of the entity or healthcare provider administering the dose(s).
Paid time off: Consistent with OSHA’s June 2021 healthcare ETS, employees are entitled to receive up to four hours of paid time off to receive each does of the vaccination (including time spent traveling, but only if the vaccination is received during normal work hours) at their regular rate of pay, as well as “reasonable time and paid sick leave” to recover from the side effects of each does of the vaccine. Recognizing the potential for abuse, OSHA specifically permits employers to cap the amount of paid time off they must provide to employees recovering from the side effects of vaccination, indicating that a two-day cap, per dose, would be considered reasonable. As expected, the ETS also allows employers to require employees to use accrued sick time or general PTO time when recovering from vaccination side effects. Travel costs associated with vaccinations (e.g., mileage reimbursement) are not required to be paid to employees under the ETS.
Neither OSHA nor the Department of Labor more broadly has provided any indication that federal funding or tax credits are contemplated for employers providing paid time off to employees under the ETS.
Testing: “Who will bear the cost of testing?” has been a question and significant concern for employers waiting for the ETS. While OSHA has traditionally placed the burden of workplace health and safety (financial and otherwise) primarily on employers, the ETS does not require employers to pay for an employee’s choice to be tested weekly in lieu of receiving the COVID-19 vaccination and, instead, places the burden of cost on unvaccinated employees. Employers are cautioned, however, under the ETS to remain mindful of other federal, state, and local laws and collective bargaining agreements that may state or require otherwise, including O.R.C. 4113.21 and the Americans with Disabilities Act (regarding employer obligations to pay for medical examinations) and minimum wage and compensable time issues under the federal Fair Labor Standards Act.
The ETS also addresses potential fraud in a second way, with respect to the testing results required to be submitted by unvaccinated employees. OSHA included the requirement for some type of independent confirmation of the test result given the “many social and financial pressures for test-takers to misrepresent their results,” by requiring unvaccinated employees to undergo tests that are: 1) cleared, approved, or authorized (emergency or otherwise), by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test); (2) administered in accordance with the authorized instructions; and (3) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Again, antibody tests do not need these requirements, although tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer will meet this definition.
The availability and timing of weekly testing of unvaccinated workers has also caused concern for many employers already stretched thin by a tight labor market.
Recordkeeping: The ETS requires that employers maintain a roster of employee vaccination status. Because vaccination records and test results are considered “medical records,” this information must be maintained as confidential under OSHA’s existing regulations. While OSHA’s existing regulations require employers to maintain and preserve medical records of employees for the duration of employment, plus 30 years after separation, the ETS makes clear that these records and the roster must only be maintained and preserved while the ETS remains in effect.
In addition, the ETS requires that if an employee requests to examine or copy their individual COVID-19 vaccination and test results, or the number of full vaccinated employees at a workplace compared to the total number of employees at that workplace, employers must make that information available to the employee within one business day of the request being made. Employers may also be required to produce this information, as well as a copy of their mandatory vaccination policy and their roster of vaccination status to OSHA within 4 hours of OSHA’s request.
IV. When does the ETS Take Effect and For How Long?
Although the ETS becomes effective immediately, employers have two compliance dates to aim for:
- December 5, 2021 for compliance with a written mandatory vaccination policy, determination of employee vaccination status, recordkeeping and all other ETS requirements except for unvaccinated testing; and
- January 5, 2022 for compliance with the testing requirements for those not fully vaccinated (including those who have not yet received the requisite number of doses for a primary vaccination series and passed the two-week period following).
Because of the different timing for the three main vaccinations available in the United States, employers are cautioned to keep these dates in mind for purposes of completing the requisite vaccination series by that time.
OSHA anticipates that the ETS will be in effect for six months, or until May 5, 2022, but promises to continue to monitor trends in COVID-19 infections and deaths as more of the workforce and the general population become vaccinated and the pandemic continues to evolve.
V. In What Other Ways Will the ETS Affect The Workplace?
Significantly, the ETS does not eliminate an employer’s duty to bargain with a representative union over wages, hours, terms and conditions of employment. However, particular provisions of collective bargaining agreements may impact the type of bargaining an employer must engage in with a representative union, whether that be decision or effects bargaining. For example, certain contract language may allow for an employer implement the ETS immediately (and potentially without union involvement), while still bargaining with a representative union regarding the impact of the ETS on employees. Topics such as, who will cover the costs of testing for unvaccinated employees, whether testing will be available, disciplinary measures for not timely reporting tests, and the accommodation process are all likely topics over which bargained will have to take place. Regardless of the type of bargaining, employers should proceed with caution in attempting to unilaterally implement any provision of the ETS.
Employers should also be proactive in ensuring they meet the individual requirements of the ETS rather than relying on good faith efforts, as the ETS conceivably allows for OSHA to cite employers for general compliance and recordkeeping requirements in the absence of employee infections or fatalities. OSHA’s enforcement efforts, including the focus and resources the agency intends to dedicate to this COVID-related ETS as opposed to its National and Regional Emphasis programs, remains to be seen.
VI. Legal Challenges Expected
Despite the myriad of information OSHA has provided, significant questions regarding the ETS remain. Questions regarding enforcement mechanisms, potential penalties, as well as questions regarding the ETS’ express language pre-empting state and local law remain unanswered.
More than 20 states have promised to challenge the most recent ETS in court, President Biden’s Executive Order relating to federal contractors has also been challenged, and no one can predict the outcome of these lawsuits, including how rulings from federal Courts on these two mandates could be inconsistent. For now, employers should prepare to comply with the ETS as best as possible, while also keeping a close eye on OSHA’s guidance – as the situation is likely to change and evolve in the coming weeks.
Return to work procedures and vaccine mandates have consumed much of Human Resources’ attention over the past year. However, there are other areas of the law that employers should continue to monitor. For example, California recently passed Senate Bill 331 (“SB 331”) which limits an employer’s ability to use non-disparagement, non-disclosure, and confidentiality agreements. Specifically, SB 331 prohibits an employer from using language in a settlement agreement which prevents or restricts an employee’s ability to disclose facts in a lawsuit regarding:
- An act of sexual assault;
- An act of sexual harassment; or,
- Generally, acts of workplace harassment, discrimination, or retaliation.
SB 331 also makes it unlawful for an employer to include a provision in a separation agreement which prohibits an employee from disclosing information about unlawful acts in the workplace. Unlawful acts in the workplace are defined broadly as “information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.”
Of course, SB 331 only applies to employers in California. However, it serves as a good reminder for employers to review their separation agreements and goals of those agreements. For example, some employers may include a non-disparagement provision in their separation agreements that – while legally enforceable – has never been enforced. If this is the case, an employer might consider changing or deleting this language as it is superfluous. As another example, some employers may actually include a mutually enforceable non-disparagement provision which, in practice, will be invoked by the former employee much more often than by the employer. Again, an employer may want to revise this language.
In 2020, the Ohio BWC decided to return a total of nearly $8 billion in dividends to Ohio employers over the course of the year. Although the amount of the dividends reflected an effort to assist employers reeling from the effects of the COVID-19 pandemic, dividend returns are not exclusively a COVID-19 relief effort; any given year, the BWC may return dividends to employers based on investment returns on employers’ premiums and the number of injury claims for that year. Last year was much higher than typical years, however, as the BWC saw especially good returns on premium investments and a significant decrease in the number injury claims with business activities slowed and many employees working from home or out of work entirely. This allowed for an especially large payment of dividends to be returned to employers… or at least, qualifying employers.
Not all Ohio employers received all of their dividend checks last year. There were three rounds of dividend payments issued by the BWC—a return of $1.54 billion in late April, another $1.34 billion returned in October, and then approximately $5 billion in December. To be eligible for the October and December dividend returns, employers needed to have paid premiums for the policy periods referenced above. Employers also need to have completed their payroll true-up reports for the 2019 policy year by October 2, 2020—the day that the BWC determined eligibility for the October dividend. Employers who had not completed their payroll true-up reports by that date missed out on their checks for the October and December dividends—substantial sums of money during a time of particular financial hardship—and were essentially left without recourse. The BWC literature available to employers online was unequivocal with respect to that October 2nd deadline, with no clear method for appeal or review regarding eligibility. Employers either received their checks in the mail or, if they missed the deadline for any reason, did not.
Spurred on by the efforts of many employers who missed out on their share of the dividends and their attorneys—including several attorneys here at Frantz Ward—the BWC has reversed course regarding its refusal of payment of the $5 billion December dividend to employers who did not originally meet the eligibility requirements. Approved by vote of the BWC Board of Directors on September 24, 2021, $30 million in previously unpaid dividend returns will go out to approximately 3,000 employers that missed out on the original December dividend payment. According to the BWC’s FAQ located here, the primary reason for this decision is the fact that the October 2, 2020 “deadline” for eligibility for the dividend payments was actually one month prior to Board approval of the December dividend, meaning that many employers found themselves already ineligible with no opportunity to remedy it by the time the dividend was announced.
The BWC announced that it will directly contact employers eligible for this dividend expansion, but employers who believe that they may be eligible but do not receive any such communications from the BWC should consult their legal representative or contact their BWC employer services specialist regarding the issue.
On September 24, 2021, the Biden Administration’s Safer Federal Workforce Task Force issued Covid-19 workplace safety guidance for federal contractors and subcontractors. The 14-page guidance provides that “covered contractor employees” must be fully vaccinated by December 8, 2021, unless a religious or medical exemption applies. There is no testing option for employees who choose not to be vaccinated and individuals are considered “fully vaccinated” two weeks after receiving the second dose of an approved vaccine. The mandate applies to all full-time and part-time employees of a covered contractor, subject to a few limited exceptions such as medical or religious exemptions, as well as certain employees who work at a location that has no nexus to the federal contract or subcontract or remote employees who perform no work relating to the contract or subcontract. The mandate, however, does apply to employees (remote or otherwise) who are only indirectly involved in supporting a government contract.
The mandate contains several other requirements, including, but not limited to:
- requiring covered employees to follow CDC masking and physical distancing obligations
- requiring covered employers to designate a Covid-19 safety coordinator to coordinate and implement the requirements of the mandate
The key question in implementing this mandate will be: who is a covered employer? Generally speaking, the mandate will apply to federal contracts for services, construction, a leasehold interest in real property or if the contract is in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public.
Questions will undoubtedly remain regarding the scope and coverage of the mandate, as well as how exemptions are to be applied. Frantz Ward will continue to monitor updates related to the federal mandate guidance. In the meantime, covered contractors should begin to implement steps now to comply with the guidance.
Feel free to reach out to a member of Frantz Ward’s Labor and Employment Group with questions.
On September 29, 2021, the General Counsel of the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued a Guidance Memorandum memorializing her position that student-athletes at private universities should be considered “employees” under the National Labor Relations Act (NLRA).
The NLRB has never directly answered the question of whether student-athletes are employees under the NLRA. It nearly did so in 2015, when members of the Northwestern University football team attempted to unionize. Instead, the Board declined to exercise jurisdiction on grounds that the novelty of the players’ petition and its impacts on college sports would not have promoted “stability in labor relations.”
Since the Northwestern decision, as GC Abruzzo explained in her Memorandum, the concept of student-athletes as employees has gained broader acceptance in the law. First came the landmark U.S. Supreme Court decision in NCAA v. Alston, 141 S. Ct. 2141 (2021), which held that the National Collegiate Athletic Association (NCAA) violated federal antitrust laws by prohibiting its member schools from providing student-athletes with certain education-related benefits. In his concurring opinion, Justice Kavanaugh went a step further and questioned whether the NCAA and universities can continue to justify not paying student-athletes for the revenues they generate. He also suggested that one mechanism for resolving compensation disputes between players and universities is by “engaging in collective bargaining.”
Then shortly after Alston, the NCAA suspended its rules prohibiting amateur athletes from profiting off of their name, image, and likeness (“NIL”)—a decision the NCAA made as several state laws throughout the country were set to grant NIL rights to players. As a result, student-athletes may now capitalize on their status to earn significant compensation in myriad ways, from endorsement deals to social media revenues to private tennis lessons.
GC Abruzzo’s memorandum builds on these shifting views and states her position that student-athletes should receive the protections afforded to employees under the NLRA. This includes the right to form and join unions and require their schools to bargain collectively over the terms and conditions of their employment. Granting athletes NLRA protections would also subject schools who interfere with these rights to liability for unfair labor practices, and it could force them to defend disciplinary decisions under contractual grievance procedures.
Importantly, GC Abruzzo’s memorandum is not binding authority; it does not reflect a change in the NLRA. In order for student-athletes to achieve the protections she seeks, GC Abruzzo’s position will need to be considered and adopted by the Board itself. This is typically done through administrative litigation, which requires plaintiff/student-athletes to assert their employee status before the Board in the right type of case. That process may take many months or even a couple of years, but it is likely coming soon. When we reach that point, it will be interesting to see if and how the NLRB draws the lines.
For example, would the protections be limited to major revenue-generating sports at a handful of Division I schools, or would they apply to all sports at all private universities? Would they apply to student-athletes or also to student interns, managers, and athletic trainers? Would they be limited to sports or include non-athletic extra-curricular activities? And would bargaining subjects be limited to major decisions like revenue sharing and scholarship allocation, or would they include starting line-up decisions and playing time allocations? These are just a few of the complex issues the Board would need to resolve in order to answer the ultimate question: that is, can employee protections feasibly be granted to student-participants in extracurricular activities in a way that promotes stable labor relations?
It will also be interesting to see whether GC Abruzzo’s memorandum and these other pro-athlete/employee decisions gain traction in other contexts. Although athletes at private universities may soon be considered employees under the NLRA, the NLRB only has jurisdiction over private universities. Will state agencies follows suit and grant similar protections to students at public universities like Ohio State? And will student-athletes be granted minimum-wage rights under the FLSA, or leave rights under the FMLA? Such claims have been uniformly rejected by courts so far (including in the recent decision of Dawson v. National Collegiate Athletic Association, 932 F.3d 905 (9th Cir. 2019), wherein the court held that a USC football player was not an employee for wage and hour purposes). But if these recent decisions signal anything, it’s that the student-athlete employment game is far from over; it may just be beginning.