Union Representation: Coming to a Football Stadium Near You?

Friday, January 31, 2014

As everyone readies themselves for this weekend's Super Bowl, where one of the principal storylines has been the potential for snowy conditions, a much more serious storm emerged this week within the world of college football.

On January 28, a group of football players from Northwestern University filed a petition with the Chicago office of the National Labor Relations Board (NLRB) seeking union representation.  They have formally requested that the College Athlete Players Association (CAPA) be recognized as their exclusive bargaining agent.  CAPA's election petition represents the first step in the union certification  process.  If the NLRB determines that the players have the right to unionize, a sea of change in the relationship between universities, student-athletes and the NCAA will follow.

To have the NLRB consider a petition to be unionized, at least 30 percent of the members of a potential bargaining unit must sign and submit union cards.  By filing signed cards with the NLRB on behalf of the Northwestern players, CAPA triggered a process that will commence at the regional level of the NLRB and almost certainly wind up in federal court.  Initially, one of the pivotal legal issues will involve whether scholarship athletes can be classified as "employees" under the National Labor Relations Act, a definition that has evolved over time through the holdings set forth in many court decisions.

For its part, Northwestern's administration draws a sharp distinction between a wage-earning employee and a student-athlete responsible for paying tuition for his or her education.  A series of court decisions analyzing whether student athletes were employees entitled to medical benefits lends credence to the University's position.  Not surprisingly, the NCAA's legal team has also argued that the matter is cut and dried:

  • This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize.
  • Many student athletes are provided scholarships and many other benefits for their participation. There is no employment relationship between the NCAA, its affiliated institutions or student-athletes.
  • Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act. We are confident the National Labor Relations Board will find in our favor, as there is no right to organize student-athletes.

Initially, the unionization push was the brainchild of Northwestern quarterback Kain Colter, who reached out to the organization National College Players Association (NCPA) for help.  Colter became a leading voice in regular NCPA-organized discussions among college players from around the country.  Interestingly enough, Colter went public with his concerns in Northwestern's game last season against the University of Maine Black Bears.  That weekend, he raised awareness for what was called the "All Players United" movement by joining with teammates and athletes from other schools who wore wristbands and towels that read "APU."

Developments in this high profile dispute will certainly be worth following.  If the players are able to establish that the tremendous degree of control exercised over their athletic lives by their colleges renders them akin to employees, the color commentary we hear on game day may eventually encompass discussions about collective bargaining, player grievances and wage scales.

Are Employment Contracts Always Terminable At the Will of Either Party?

Monday, January 27, 2014

In states where employment is generally considered “at-will,” many employers take it as a foregone conclusion that employment contracts are terminable at the will of either party.  But is this conclusion always correct?  The answer is no – sometimes, an employer can unwittingly defeat the presumption of “at-will” employment by incorporating language into its employment policies and manuals that restrict the ability to discharge an employee.

A recent case from the Federal District Court in Massachusetts highlights this issue and provides helpful guidance to employers on drafting effective personnel manuals.  In Ray v. Ropes & Gray, LLP, an associate at a law firm argued that a personnel manual created an implied employment contract and rebutted the presumption that his employment was at-will.  In assessing the associate’s claim, the court noted that, under Massachusetts law, a personnel manual may create an implied employment contract.  However, the court explained that a personnel manual does not create an implied contract where:

1. The employer retains the right to unilaterally modify the manual’s terms;
2. The terms of the manual are not negotiated;
3. The manual states that it provides only guidance regarding policies;
4. The manual does not specify a term of employment; and
5. The employee does not sign the manual to “manifest assent.”

In this case, the court found that the personnel manual contained nothing more than the “customary blandishments about fair treatment and equal opportunity.”  The manual did not specify a term of employment and included a disclaimer that it did not amount to a contract.  In addition, the manual explained that its terms were non-negotiable and that the law firm retained the right to modify or withdraw its policies at any time.  Given these disclaimers, the court concluded there was no reasonable basis to regard the manual as an enforceable contract.

For employers, the Ray decision serves as a good reminder to review all existing personnel policies and manuals to make sure they are consistent with the expectation – and presumption – that employment is at-will.

Maine Legislature to Consider Employer Drug Policies

Friday, January 24, 2014

Over the next few months, the Maine Legislature will be considering substance abuse policy regulation. Senator Andre Cushing has introduced a bill, LD 1669, An Act To Standardize and Simplify the Process for Employers To Provide a Drug-free Workplace that would change the way the state regulates workplace polices on this issue.

Current law requires employers that want to provide a drug-free workplace by testing applicants or employees for substance abuse to develop and file a policy with the Department of Labor. The Bureau of Labor Standards reviews the policies to ensure compliance with state laws and rules.

This bill provides employers with a single, consistent model policy. The model policy, which must be established by the Commissioner of Labor and managed by the department, is intended to encourage greater participation by employers to reduce substance abuse in the workplace. The bill requires an employer to adopt the model policy before establishing a substance abuse testing program.

It removes the requirements that employers provide an employee assistance program and pay for half of rehabilitation beyond services provided through health care benefits. Employers may offer an employee assistance program if they choose. The bill also amends the definition of "probable cause" to provide that a single work-related accident is probable cause to suspect an employee is under the influence of a substance of abuse. The bill requires the Department of Health and Human Services and the Department of Labor to work together to adopt rules to establish the model policy by July 1, 2015.

LD 1669 will be considered at a public hearing before the Labor, Commerce, Research and Economic Development Committee scheduled for January 28th at 2 pm.

Authored by Stephen E.F. Langsdorf.  For more information on employment related issues, contact Attorney Langsdorf at 207.623.5300 or slangsdorf@preti.com.

Who Is a Full-Time Employee Under the Affordable Care Act?

Wednesday, January 15, 2014

Beginning January 1, 2015, the large employer mandate of the Affordable Care Act (ACA) requires that all full-time employees be offered minimum essential, affordable coverage.  Penalties will be assessed for each month that a large employer fails to offer minimum affordable coverage to its full-time employees.

Under the ACA, a full-time employee has at least an average of 30 hours of service per week, or at least 130 hours of service per month.  Hourly employees can be tracked on an actual hours basis. Other rules apply to salaried and other non-hourly employees. Full-time status is determined each month.

In order to reduce the administrative burden of tracking monthly employee hours, the IRS has issuance alternative guidance for determining full-time employee status.  Under these safe harbor rules, a large employer can choose a “measurement period” of between 3 to 12 months during which it determines which employees meet the hours of service threshold for full-time status.  The employer than establishes a follow-on “stability period” that is at least six months long and no shorter than the measurement period. For those employees who are determined to be full-time during the measurement period, the employer must treat them as full-time employees during the entire stability period, even if they cease to qualify as a full-time employee during the stability period.  For those employees who are not determined to be full-time during the measurement period, the follow-on stability period can be no longer than the measurement period.  Other rules apply for new and variable hour employees.

Needless to say, the alternative safe harbor options have their own administrative challenges. However, they may be easier to address than the month by month calculations that might otherwise be required.  If so, large employers must start planning well in advance of the January 1, 2015 implementation date for the new coverage mandates.  Waiting until the proverbial last minute may eliminate these safe harbor options.

First Circuit Finds No Whistleblowing Where Employee's Report was Part of the Job

Wednesday, January 8, 2014

Here’s a zen koan for today:  “What is the sound of a whistleblower whose job it is to blow the whistle?”  According to the First Circuit U.S. Court of Appeals, which recently meditated on this question, the sound is kind of like one hand clapping.  In Winslow v. Aroostook County, the Court explained that an employee’s report is not whistleblowing if making the report is part of his or her job duties.

The plaintiff in this case, Winslow, was the executive director of a federally-funded state workforce investment board (WIB).  Aroostook County was the grant sub-recipient for the WIB and acted as the fiscal agent for the grant.  As fiscal agent, the County hired Winslow and paid her salary, and Winslow reported to the County.  However, there was no explicit fiscal agent agreement between the WIB and the County.

In November 2009, federal monitors from the Department of Labor undertook a compliance review of its grants in Maine, including the WIB, and determined that it was improper for Winslow to report to the County rather than to the WIB in the absence of an express agreement.  Winslow participated in the compliance review and was directed by her supervisor at the County to prepare a report on the federal monitors’ findings.  Winslow prepared the report and then, at the direction of her supervisor, sent it to members of the WIB.  As a result of the compliance review, the WIB entered into an agreement with a new fiscal agent.  The County then terminated Winslow’s employment, as the County was no longer involved in the administration of the grant.  Although Winslow applied for the position of executive director with the new fiscal agent, she did not get the job.

Winslow then sued the County and claimed that she was terminated in retaliation for blowing the whistle on the absence of a formal fiscal agent agreement.  The First Circuit disagreed and found that Winslow made the report regarding the federal monitors’ findings as part of her job duties and at the request of her supervisor.  Noting that the usual rule in Maine is that “a plaintiff’s reports are not whistleblowing if it is part of his or her job responsibilities to make such reports, particularly when instructed to do so by a superior,” the Court concluded that Winslow had not blown the proverbial whistle.