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National Labor Relations Board Assumes Worker Misclassification

The Chicago regional office of the National Labor Relations Board (NLRB) has filed a complaint for unfair labor practices against Postmates, an on-demand delivery service that, according to its website, “connects customers with local couriers who can deliver anything from any store or restaurant in minutes.”

NLRB Moves Closer to Finding that Scholarship Student-Athletes are Employees

On September 22, 2016, the Associate General Counsel (“AGC”) for the National Labor Relations Board (“NLRB,” or the “Board”) issued an Advice Memorandum indicating that a number of policies in the Northwestern University Football Handbook were unlawful under the National Labor Relations Act (the “Act”). By subjecting the handbook to the Act, and referencing these scholarship football players as employees, the NLRB seems to be more concretely articulating its position on the status of student-athletes as employees. The Memo is the latest in a seemingly back and forth and abstract saga. If you remember, the Board punted the issue of student-athletes’ employment status back in August 2015 when it declined to exercise jurisdiction over the representation petition involving Northwestern University and College Athletes Players Association. You can see our previous coverage here and here. The Advice Memorandum, although not a Board decision confirming the status of scholarship student-athletes as employees, provides additional fuel for student-athletes at private institutions to reignite their unionization and pay-for-play efforts.

Don’t Believe Everything You Read: Labor Board Has Not Ruled College Athletes Are Employees (Yet)

ESPN recently reported that the National Labor Relations Board (NLRB) had “ruled” that Northwestern University’s football players were actually “employees,” and that the University’s policing of its football players’ social media accounts and media appearances, as well as its ban on athletes’ talking about their health, were unlawful. While the story was sensational and received considerable media attention, this summary is not entirely accurate. The Labor Board has made no such “ruling,” and therefore private colleges and universities should treat such reports with a grain of salt.

NLRB Permits Off-Duty Employees to Picket on Employer Property

An employer’s ability to prohibit picketing on its property was dealt a serious blow when the National Labor Relations Board (NLRB) recently ruled in Capital Medical Center that an acute care hospital violated Section 8(a)(1) of the National Labor Relations Act when it sought to prevent off-duty employees from picketing on hospital property by threatening the picketers with discipline and calling the police on them.

NLRB General Counsel Wants More Clarity and Employee Protection for Intermittent Strikes

On October 3, 2016, the Office of the General Counsel (OGC) for the National Labor Relations Board asked the NLRB to clarify and broaden the protection afforded employees who engage in intermittent and partial strikes.

When Is The Medium (NOT) The Message? NLRB Prohibits Acute Care Hospital From Banning Picketing Unless Distressful To Patients

In Capital Medical Center 364 NLRB No. 69 (August 12, 2016), a majority of the Board recently concluded that a hospital violated Section 8(a)(1) of the NLRA, by threatening to discipline and arrest picketers and by summoning the police to its facility when the hospital failed to prove that the picketing disrupted patient care. The Board issued an order prospectively enjoining such threats and calls for police intervention.

Labor Board Rules Off-Duty Employees May Picket On Employer Premises

In a groundbreaking expansion of union rights, the National Labor Relations Board has ruled that off-duty employees have the right to picket on an employer’s premises, unless the employer can prove under the National Labor Relations Act that a ban on picketing was necessary to prevent a disruption of health care operations. Capital Medical Center, 364 NLRB No. 69 (Aug. 12, 2016).

NLRB Signals More Trouble Ahead For Employers That Misclassify Employees

For a variety of reasons, employers may prefer to treat those who provide services to them as independent contractors rather than employees. However, when employers exercise a sufficient level of control over the ostensible independent contractors (as outlined in various “factor” tests), they may be considered employees under the law. If that happens, employers can face significant legal consequences. For example, the newly reclassified employees could sue for unpaid minimum and overtime wages, and the employer could face fines, penalties, and other liability under state workers’ compensation statutes. The IRS and state and local taxing authorities might seek income and employment tax withholdings that were not, but should have been, made.

Open the Floodgates: NLRB Announces Misclassification of Independent Contractors Can, In Itself, Violate Section 8(a)(1)

On August 26, 2016, the National Labor Relations Board's Division of Advice publicly released an advice memorandum from December of 2015 in which it found a Section 8(a)(1) violation for an employer's misclassification of independent contractor status. Pacific 9 Transportation, Inc. (No. 21-CA-150875, Dec. 15, 2015).

NLRB Grad Student Decision Extends Beyond Unionization

In a landmark case, the National Labor Relations Board (NLRB) recently ruled that Columbia University teaching and research assistants (and those at other private colleges and universities) are employees and can unionize. Last month’s long-awaited ruling opens the doors for graduate and undergraduate students to unionize and bargain collectively concerning wages, hours and working conditions. Additionally, it expands federal employment protections to students at all private colleges and universities, regardless of whether or not they unionize. Every affected student is now protected from retaliation when they engage in group activity or discussion related to wages or working conditions.