Articles Discussing General Labor Law Topics And The NLRA.

The National Labor Relations Board returned to the “clear and unmistakable waiver” standard for analyzing the legality of unilateral changes to employees’ terms and conditions of employment when there is an effective collective bargaining agreement. Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (Dec. 10, 2024).

Given the President’s control over the Executive Branch of the federal government, including the Department of Labor and National Labor Relations Board, the upcoming change in the Oval office will bring acute change to federal labor law. Employment and labor attorney La Keisha Butler discusses potential changes at the EEOC and DOL that employers should be aware of.

By: Efforts to Turn NCAA Student-Athletes Into Employees Takes A Major Step Backwards

In September 2023, the Service Employees International Union filed a Petition to represent the players on the Dartmouth College “Men’s Basketball Team.” In March 2024, an election was held. Dartmouth College’s mens’ basketball team voted 13-2 to be represented by the Service Employees International Union (SEIU) Local 560 with respect to the terms and conditions of their alleged employment.  

Following the election, Laura Sacks, the Regional Director for Region 01 of the National Labor Relations Board (NLRB), certified the election results and ordered Dartmouth to begin bargaining with the SEIU over the terms and conditions of the athletes’ alleged employment. Dartmouth appealed the decision to the full NLRB and refused to bargain with the SEIU, declaring that the basketball players were not employees. In the summer, SEIU Local 560 filed an unfair labor practice charge against Dartmouth, asserting that Dartmouth’s refusal to bargain violated its duty to bargain in good faith under the National Labor Relations Act (NLRA). Following that complaint, Dartmouth released an official statement, which read in part:

“Dartmouth’s decades-long commitment to athletics is an extension of our academic mission, and we maintain that the regional director made an extraordinary mistake in finding these students are employees, . . . In March, we appealed the regional director’s decision to the full NLRB and continue to await their review. In the meantime, we have declined to bargain with SEIU Local 560 on this matter. It is an unprecedented step in Dartmouth’s long history of labor negotiations, but it is the only lever we can engage to ensure this matter is reviewed by a federal court. We expected this action would result in their filing an unfair labor practice charge with the NLRB, which they did and which we will also appeal.”

On Tuesday, SEIU Local 560 suddenly and unilaterally withdrew its NLRB petition. Bloomberg reported that Local 560 President Chris Peck issued a statement on the withdrawal, stating:

“By filing a request to withdraw our petition today, we seek to preserve the precedent set by this exceptional group of young people on the men’s varsity basketball team. They have pushed the conversation on employment and collective bargaining in college sports forward and made history by being classified as employees, winning their union election 13-2, and becoming the first certified bargaining unit of college athletes in the country. We are extremely disappointed that Dartmouth chose not to respect the team’s decision and federal labor law by refusing to bargain, thus violating their own Code of Ethical Business Conduct.”

It’s clear that this withdrawal was made in response to the November election. More specifically, once Trump is inaugurated, he will likely appoint new NLRB Board members to fill two vacant positions and replace the NLRB General Counsel. The new Board majority and new GC will be much more employer-friendly than what employers have had to face under the Biden Board and its GC, Jennifer Abruzzo. The SEIU obviously became wary of what a Trump Republican majority board would do with the Region 01 decision and did not want to establish a negative precedent from the full Board on the issue of the employment status of student-athletes. If the RC Petition was not withdrawn, it was highly unlikely that the full Trump NLRB would find that the Dartmouth student-athletes were employees and very likely that the petition would have been thrown out by the new Board. SEIU Local 560 sought to avoid this result and voluntarily withdrew its RC Petition, terminating the efforts to unionize the Dartmouth mens’ basketball team.  

The NLRB’s complaint against the Pac-12 Conference, the NCAA, and the University of Southern California, which is related to student-athletes’ status as employees under the NLRA, continues to be litigated. However, given the expected make-up of the Trump NLRB, it is likely that the matter will also be withdrawn once the Trump NLRB takes shape. It’s unlikely that a Trump NLRB would find that NCAA student-athletes are employees with a right to organize and bargain. Thus, this issue will likely die on the vine for at least the next four years unless some legislation is passed to try to establish some organization to the current NCAA and the status and rights of student-athletes, which remains uncertain and complex following the 2021 SCOTUS ruling in NCAA v. Alston on NIL rights of student-athletes.

This blog will continue to keep you updated on the developments related to the employment status of student-athletes.  

The National Labor Relations Board prohibited employers from holding mandatory “captive audience” meetings, overturning long-standing precedent. 373 NLRB No. 136 (Nov. 13, 2024). The decision prohibits employers from requiring employees to attend meetings where the employer expresses views on unionization, citing the coercive nature of such meetings.

Former President Donald Trump’s Election Day victory leaves the National Labor Relations Board’s status uncertain, but a new general counsel appointment is likely. Currently, the Board has a 2-1 Democratic majority. President Joe Biden has made two Board member nominations (one Republican and one Democrat), but they have not yet been confirmed by the U.S. Senate.

Takeaways:The General Counsel expanded her theory that certain restrictive covenants are unlawful by also including “stay-or-pay” provisionsEmployers could soon face expanded remedies for proffering, maintaining, or enforcing non-compete and “stay-or-play” provisions deemed unlawfulEmployers have until Dec. 6, 2024, to cure preexisting provisionsRelated link:

Goldberg Segalla’s Labor Law Update keeps clients informed about significant changes and cases involving New York’s Labor Law. The Fall 2024 issue includes: 

The National Labor Relations Board’s Fair Choice-Employee Voice Final Rule, codified at 29 C.F.R. 103.20-21, became effective on Sept. 30, 2024. The Biden Board’s final rule rescinded portions of a Trump-era 2020 rule affecting employer recognition of unions in the construction industry, blocking charge procedures, and the voluntary recognition bar.

By: NLRB GC Memo Calls For Aggressive Retroactive Make-Whole Remedies Against Employers 

Last year, National Labor Relations Board (“NLRB” or “Board”) General Counsel, Jennifer Abruzzo, issued GC Memorandum 23-08 opining that, with some exceptions, the maintenance and enforcement of non-compete agreements violates the National Labor Relations Act (“NLRA” or “Act”). Then last week, she doubled down and issued a new memorandum, GC Memorandum 25-01, encouraging the Board to (i) impose wide-ranging make-whole remedies in the face of non-compete agreements that violate the NLRA, (ii) extend her non-compete rationale to recognize a rebuttable presumption of unlawfulness with respect to so-called “stay-or-pay” agreements (under which an employee agrees to disgorge/recover the cost of a benefit—like a training cost—if they separate from employment before an agreed upon date), and (iii) impose wide-ranging make-whole remedies in the face of stay-or-pay agreements that violate the Act.

Specifically, the General Counsel describes the harms that flow from non-competes as being uniquely “pernicious” and thus encourages the Board to broaden its remedial efforts and order employers to—

• compensate current employees for the difference in lost compensation where the employee can show they were deprived of a better job opportunity because of a non-compete (simply by showing a preferable vacancy, qualification, and that the non-compete acted as discouragement from applying);
• compensate former employees for periods of unemployment where the employee can show they were unemployed for longer than they otherwise would have been as a result of the non-compete;
• compensate former employees for the different experience in accepting a job of lesser compensation in compliance with the non-compete compared to a better-paying job they were dissuaded from taking due to the non-compete; and 
• compensate former employees for moving-related and retraining-related expenses incurred obtaining employment consistent with the terms of a non-compete provision.

Scarier still, the memo suggests that “any uncertainty” as to the evidentiary sufficiency supporting a claim for the foregoing remedies should be “resolved in favor of the employee.”

Next, GC Memorandum 25-01 takes aims at stay-or-pay agreements that seek to recoup front-end expenses from early-departing employees, and ultimately describes them as “presumptively unlawful.” The memo advocates that employers may only be permitted to rebut the presumption of unlawfulness by proving both that the stay-or-play provision advances a legitimate business interest (e.g., to recover expenditures when the employee leaves before the employer can reap the anticipated benefit of the expenditure) and that the provision is “narrowly tailored,” which means (i) voluntarily entered into (i.e., optional) in exchange for a benefit, (ii) stating a reasonable and specific repayment amount, (iii) with a reasonable stay period, and (iv) a carve-out for no repayment in the event of involuntary termination.

As with non-competes, GC Memorandum 25-01 similarly advises that the “maintenance of non-voluntary stay-or-pay arrangements” violates the NLRA and “requires a more robust remedy….” For example, “when an employer attempts to collect the purported debt,” in addition to nullifying the debt, “the employer must compensate the employee for any legal fees or any other expenses associated with defending against the employer’s action.”

Further, just like with non-competes, where employees might miss out on more lucrative job prospects because of their existing agreements, “employees must have the opportunity to come forward and demonstrate that they were deprived of better employment opportunities” by their stay-or-pay agreements. Said differently, Abruzzo’s Memorandum encourages the Board to impose the same aggressive, wide-ranging make-whole remedies against employers with stay-or-pay agreements as with non-compete agreements.  

While the Memorandum does suggest granting employers a sixty-day window to cure preexisting stay-or-pay provisions consistent with the parameters outlined in the document (i.e., until December 6, 2024), the office of the General Counsel concludes with an unambiguous warning to employers, “I intend to prosecute preexisting stay-or-pay arrangements that fail the test set forth herein and seek retroactive application, absent extenuating circumstances.”  

Employers with non-compete or stay-or-pay agreements in circulation would thus be well-advised to have their labor counsel review such agreements with an eye toward last week’s memo without delay. The author of this article, John Giovannone, and other attorneys at CDF are well equipped to provide advice in this area.  

The International Longshoremen’s Association (ILA) ended its strike across the East Coast and Gulf Coast ports after reaching a tentative wage agreement with the U.S. Maritime Alliance (USMX). USMX, which represents port terminal operators, had been in contract negotiations for several months before its contract with the ILA, which represents nearly 50,000 dockworkers, expired on Sept. 30, 2024. Prior to the three-day strike begun on Oct.