NLRB Announces Plans To Expand Definition Of "Employee" To Include Student Athletes

• Published date: 08 October 2021
• Subject Matter: Employment and HR, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Law Firm: Armstrong Teasdale
• Author: Ms Ramona Palmer-Eason and John Welsh

The National Labor Relations Board's (NLRB) General Counsel Jennifer A. Abruzzo announced last week her intention to treat certain players at academic institutions as employees for purposes of determining violations under the National Labor Relations Act (NLRA). This news comes just over three months after the landmark decision in NCAA v. Alston (141 S.Ct. 2141 (2021)) in which the United States Supreme Court affirmed a lower-court decision holding that the NCAA, an association that regulates college sports, cannot restrict certain benefits related to education from certain student athletes on antitrust grounds. The Alston case made room for the enactment of local laws along with the reversal of NCAA policies to allow student athletes to earn compensation from their name, image, likeness or athletic reputation as players. The General Counsel's announcement of its intent to treat 'student athletes,' essentially scholarship athletes, as employees could have significant implications for private universities.

If scholarship athletes are treated as covered employees under the NLRA, private universities could be required to bargain with their union over benefits related to education, including their scholarships, wages, benefits, practice scheduling, travel and other terms and conditions of employment. Further, the interpretation could also give rise to worker misclassification claims. The NLRB General Counsel's announcement warns that she will, where she deems appropriate, 'allege that misclassifying such employees as mere 'student athletes' and leading them to believe that they do not have statutory protections is a violation of Section 8(a)(1) of the Act'. The General Counsel suggests that even the use of the term 'student athletes' is in itself a violation of individuals' workplace protections and suggests that the term was 'created to deprive those individuals' of their rights. Violations of Section 8(a)(1) of the Act, which prohibits covered employers from interfering with the right of covered employees to engage in collective bargaining and other protected concerted protest activities, could lead to the issuance of cease-and-desist orders and/or claims for back pay or other compensation.

Notably, the NLRB General Counsel's announcement signals a departure from at least one prior decision of the NLRB in which it declined to exercise jurisdiction over claims by athletes under scholarship seeking to be considered as covered employees under the NLRA. In...