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Author: Steve Treagus

No Union for Northwestern Football Players
Posted by On Thursday, August 27, 2015

For a moment in college football history, student football players at Northwestern University (NU) were deemed “employees” with the right to unionize under the National Labor Relations Act (NLRA). But that moment is over — at least for now.

A regional director for the National Labor Relations Board (NLRB) previously ruled that football players at NU were employees eligible to vote on whether to form a union. However, after the election but before the votes could be counted, the full NLRB in Washington D.C. impounded the ballots to consider an appeal by NU.

Rather than decide whether the football players are employees with union rights, the NLRB made an end-run around the question by declining to assert jurisdiction — a decision effectively denying the players the right to unionize under the NLRA. “Our decision,” the NLRB explained, “is primarily premised on a finding that … it would not promote stability in labor relations to assert jurisdiction.”

Observing that since the National Collegiate Athletic Association (NCAA) sets and enforces common rules and standards of practice and competition over NU and other member teams, as well as individual players, “a symbiotic relationship” exists among them.

“As a result,” the Board reasoned, “labor issues directly involving only an individual team and its players would also affect the NCAA … and the other member institutions. Many terms applied to one team therefore would likely have ramifications for other teams. Consequently, it would be difficult to imagine any degree of stability in labor relations if we were to assert jurisdiction in this single-team case.”

Additionally, the Board noted that although NU is a private university covered by the NLRA, the Act does not cover state-run educational institutions, which means the NLRB cannot exercise jurisdictions over sports teams at these other NCAA-member schools.

“In particular, of the roughly 125 colleges and universities that participate in FBS [Division I Football Bowl Subdivision of the NCAA], all but 17 are state-run institutions. As a result, the Board cannot assert jurisdiction over the vast majority of FBS teams …. More starkly, Northwestern is the only private school that is a member of the Big Ten [Conference of the NCAA], and thus the Board cannot assert jurisdiction over any of Northwestern’s primary competitors.”

Still, the NLRB left the door open to revisit the issue for players’ groups larger than a single team, or under different circumstances: “[W]e are declining jurisdiction only in this case involving the football players at Northwestern University … The Board’s decision not to assert jurisdiction does not preclude a reconsideration of this issue in the future.” [Northwestern University v. College Athletes Players Association (2015) 362 NLRB No. 167]

For more information on students and work, see our earlier posts on unpaid internships and the Fox Searchlight lawsuit.

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California Mandates Campus Sexual Assault Reporting to Police
Posted by On Monday, October 27, 2014

Nearly a year ago, a California bill proposing to mandate campuses to report sexual assault and other crimes to the police garnered national attention. Now, that bill (designated AB 1433) has become law. AB 1433 requires most colleges, as a condition of receiving state Cal Grant funds, to immediately – or as soon as practically possible – report specified crimes against students to local law enforcement agencies without disclosing the student’s identity (unless the student consents). The reporting law takes effect immediately. However, schools have until July 1, 2015 to additionally adopt and implement policies and procedures to ensure that crimes are reported to local law enforcement.

What has changed

On September 29, 2014, AB 1433 became law, requiring California colleges and universities to immediately (or as soon as practically possible) alert the campus police or local law enforcement when a student or employee reports a violent crime:

  • willful homicide, forcible rape, robbery, or aggravated assault (“Part 1 violent crimes”), as defined in the Uniform Crime Reporting Handbook of the Federal Bureau of Investigation
  • sexual assault (e.g., rape or rape with an object, forced sodomy or oral copulation, sexual battery, or the threat of any of these)
  • any hate crime committed because of another person’s disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with any of these characteristics

This new law makes reporting a condition of receiving Cal Grants that help qualifying students pay for college. And, no later than July 1, 2015, institutions of higher learning must “adopt and implement written policies and procedures to ensure” that crimes are immediately reported to law enforcement.

To protect victim’s privacy, the law requires that no identifying information about the alleged victim can be included in the report unless the victim consents. According to Newsweek, this provision was added after victims’ advocates objected that the initial draft of the bill, by making reporting mandatory without the alleged victim’s consent, would pressure sexual assault survivors to work with the police against their wishes.

Sexual assault survivor and UC Berkeley student Sofie Karasek, whom AB 1433 author Assemblyman Mike Gatto consulted in drafting the bill, put it this way:

“I figured it would be much easier and less stressful to report to the school as opposed to trying to go to trial, especially since I was an out-of-state freshman . . . I wasn’t interested in going through a long, ardorous [sic] process with police, who I thought probably wouldn’t believe what I was saying and wouldn’t put their full effort into my case.”

Karasek, according to Newsweek, joined other UC Berkeley students in a 2013 federal lawsuit against the University for failing to provide a timely and proper response to sexual assault allegations. AB 1433 was inspired by federal complaints against Occidental college involving more than 50 student and faculty members for violating federal law, by allegedly failing to disclose assault claims and discouraging women from reporting.

Agreements with police

In California, many colleges have established campus police forces with the primary authority for providing police, security, or investigative services on their campuses. Existing law requires written agreements with the city or county law enforcement agency responsible for policing the community where the campus is located.

AB 1433 does not change this, but it does require that local police be kept “in the loop” as soon as campus police receive crime reports. Reporting directly to the police will increase transparency and public accountability, according to Gatto as cited in the Assembly Floor Analysis of AB 1433:

“The bill’s author [Gatto] indicates that law enforcement agencies have expressed concern that they are not completely aware of crime trends in their jurisdictions because some university agreements do not require campus security to pass information along to local law enforcement . . . The author believes this bill is necessary to ensure that local law enforcement agencies are aware of crime trends, by ensuring campuses pass along reports.”

Gatto also “contends this bill could result in a closer working relationship between campuses and local police and sheriffs’ departments, which will result in more thorough investigations, better outcomes for victims, and safer communities.”

Note: Similar bills are pending in New Jersey. However, lawmakers and advocates for greater victim privacy oppose the proposed laws as written. We will keep you posted on further developments.

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Beware Costly Unpaid Interships
Posted by On Thursday, March 27, 2014

Although educational institutions have traditionally encouraged internships (and some have expressed concern over increased federal regulation of businesses that provide them), unpaid internships may be more costly than you think. Not only has a recent survey suggested that unpaid internships are less effective in securing post-graduate employment than paid ones, and only a little more effective than having no internship at all,[i] but there are also real risks of lawsuits and reputational damage.

A host of recent high-profile lawsuits with costly legal payouts (e.g., $450,000 by Elite Model Management and $110,000 for The Charlie Rose Show interns) should prompt academia to make sure their students’ unpaid internships pass legal muster.

These lawsuits center on whether the internships were set up according to federal guidelines,[ii] which generally allow the internship to be unpaid (or paid by stipend only) if the training program:

  • emphasizes general skills
  • benefits the intern, not the business
  • does not displace current staff and is closely supervised
  • is not tied to a job offer or compensated

Under federal law, an institution must ordinarily pay “employees” whose time or actions it controls. Therefore, if the internship does not meet the requirements for an unpaid training program, the “interns” are actually employees who must be paid at least minimum wage, and possibly overtime.

Even a university is not safe from liability, as the International Business Times (IBT) reports. The IBT reports that Johanna Workman, upon earning her PhD in psychology, completed a post-doctoral internship for the University of California, San Francisco (UCSF) for one and one-half years — working ten hour days, five days a week — without compensation. So, she complained to the California Labor Commissioner.

UCSF argued that the rules regarding unpaid internships do not apply to nonprofit and public institutions, and that  “[t]he University’s Psychology Intern program falls squarely within they [sic] types of public sector internship programs that the [U.S. Department of Labor] describes in its fact sheet, and such programs are not subject to the minimum wage and overtime.” The state, however, disagreed, ordering UCSF to pay $14,137 for failing to pay Workman at least minimum wage. [Workman v. Regents of the University of California (CA DLSE 2013) no. 11-43384]

And, former interns for the Hamilton College Athletics Department sued their college, claiming interns were paid a flat monthly or annual stipend resulting in an hourly rate far below the minimum wage, and that they were entitled to overtime pay under federal law for working in excess of 40 hours per week.  [Kozik v. Hamilton College (NDNY 2012)  no. 6:12-cv-1870]

Interns don’t even have to work directly for the institution for it to become embroiled in a contentious legal battle.[iii] For example, Wolford College is facing a class action lawsuit by its nursing students claiming the College required them to work at Collier Anesthesia without compensation to gain educational clinical experience. The students, however, worked the same jobs as paid Collier staff and had to sacrifice classroom time to do so. [Schumann v. Collier Anesthesia (MD Fla. 2012) no. 2.12-cv-00347]

Whether or not they prevail, cases like these drain precious campus resources and damage a university’s reputation. So, it’s important to protect your institution and work for the best interest of your students.

Some steps that organizations should take to minimize their liability risks and promote a high-quality internship experience include:

  • Reviewing all internship positions and programs, whether on or off-campus, with a human resource professional and possibly an employment attorney
  • Asking outside organizations that offer internships to pay at least minimum wage – Northwestern University’s Medill School of Journalism has reportedly begun taking this step
  • Implementing stricter screening of internal postings to filter out “shady” internships by unscrupulous third parties – NYU’s career center is doing this in response to a student petition, according to the Huffington Post

Without taking steps to address the risks of liability, the current legal climate may cause employers to second-guess (and possibly side-step) school-facilitated internships. The future of the internship may hinge on academia and business taking joint responsibility for compliance.

 



[i] For example, 704 employers responded to a survey in 2012, which found that internships are a key marketing asset for students seeking a job with employers that weigh experience heavily. However, the facts are probably more nuanced. The National Association of Colleges and Employers (NACE) found in its 2013 survey of graduating seniors that only 37% of unpaid interns were employed compared with 35.2% of graduates with no internship.  On the other hand, more than 63% of paid interns were employed.

[ii] Basically, programs that focus on educating the intern, do not provide an immediate benefit to the organization, and fulfill the rest of the federal Department of Labor’s (DOL) guidelines, can minimize the risks of liability and legal penalties. DOL Fact Sheet #71 describes the general rules, but there are also special rules for certain occupations.  For example, program requirements differ for graduate students and medical student externs (DOL Field Handbook 10b18 and 10b19), pharmaceutical students (10b37(a) and (b)), and students involved in extracurricular activities (10b03(e) and 10b24).

[iii] For a contrasting view, see Insider Higher Ed’s editorial, Unpaid Internships Not Dead Yet.
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