Two years ago we reported on the case before the National Labor Relations Board (the “Board”) related to the Northwestern University’s scholarship football players seeking the right to unionize. The Regional Director in that case determined that the players were employees under the National Labor Relations Act (the “NLRA”) and therefore could vote to be represented by a Union in connections with negotiating terms and conditions of employment with the University. Ultimately, the Board refused to exercise jurisdiction over the players and therefore left open whether they are employees under the NLRA or not. At the time we reported on the case, we discussed some of the impacts of the decision beyond the ability of players to unionize, including that the Board may scrutinize the University’s policies to see if those policies complied with the NLRA. More specifically, whether the policies were written in a way that would either expressly or implicitly prevent the players from engaging in protected concerted activity. Apparently, someone did challenge the “Football Handbook” and on September 22, 2016, The Board’s Office for the General Counsel issued an advice memorandum related to that charge advising against the issuance of a complaint.
The memorandum assumed that the football players were employees, and indicated that “[i]t would not effectuate the policies and purposes of the NLRA to issue complaint in this case because the employer, although still maintaining that athletic scholarship football players are not employees under the NLRA, modified the rules to bring them into compliance with the NLRA and sent the scholarship football players a notice of the corrections, which sets forth the rights of employees under the NLRA.” According to the memorandum, Northwestern modified its handbook pertaining to social media use striking portions of the rules, in most cases replacing with new language. In particular, Northwestern took out language barring student-athletes from posting things online that “could embarrass you, your family, your team, the Athletics Department or Northwestern University.” The new text is more specific, telling the athletes not to post things that “contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity.” The memorandum also pointed to changes with the University’s rules on disclosing injury information, which had told players to “[n]ever discuss any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone” saying the “team is a family and what takes place on the field, in meetings or in the locker room stays within this family.” The new rule says football players should not reveal injuries because of “the need to ensure that teams with whom we compete do not obtain medical information about our student-athletes” but says the rule does not “prohibit student athletes from discussing general medical issues and concerns with third parties provided that such discussions do not identify the physical or medical condition or injury of specific or named student athletes.” According to the memorandum, “[t]hat modification struck the proper balance of maintaining players’ confidentiality and protecting football team information while at the same time allowing players to speak out on a no-names basis about vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players.” The memorandum further noted that the school eliminated a dispute resolution policy for student-athletes to bring a “complaint or grievance concerning personal rights and relationships to the athletic program,” which required the players to first bring such issues to the director of football operations.
So if the memorandum advised against an issuance of a complaint, why should you care about it? Well, as we also recently reported, in the Columbia University case, the Board held that student teaching assistants were employees covered by the NLRA. These employees not only have the right to unionize, but also have the right to engage in protected concerted activity even if they do no Unionize. Any handbook or policies, therefore, governing the terms and conditions of the relationship between the teaching assistants and the college or university will likely come under the NLRB’s scrutiny.
Accordingly, we suggest that you review, or have your attorney, review your current policies and handbooks to ensure compliance with the NLRA.