Lessons from the NLRB Northwestern Decision for Anyone Who is Not a Private University Administrator or Athlete

Sports and politics talk radio were rocked on March 26 with the news that National Labor Relations Board, Region 13 Regional Director Peter Ohr determined that Northwestern University’s football team athletes could form a union. The National Labor Relations Board is the federal agency that administers the National Labor Relations Act. Director Ohr’s extensive opinion found that the athletes were compensated employees under the National Labor Relations Act and subject to union representation.

While the decision created seemingly endless hours of talk show content, it may be of limited concern for the average employer. First, this decision is the first step in a long line of appeals with the National Labor Relation Board’s administrative processes and federal courts before anyone can consider it “final.” Second, the conclusions really only apply to private university athletes. The National Labor Relations Act applies to private sector employees. State law dictates the collective bargaining rights of public employees. In Wisconsin, Governor Scott Walker’s signature legislation, 2011 Act 10, severely limits those rights.

But there are some lessons in the opinion to take away for other employers. Here are a few of them.

1. You may not run a football team with athletes as employees, but you may have student interns who are compensable employees.

While not a lot of employers are running a Division 1, major conference football program, a lot of employers have a “student intern” who comes to their workplace on a regular basis. Some of the intern’s duties might include answering phones and making photocopies, which could qualify that unpaid intern as an employee subject to Fair Labor Standards Act requirements. Whether unpaid interns qualify as compensable employees is a hot button issue in wage and hour litigation. We’ve blogged about this issue before and it is worth anyone’s time to review if you aren’t already aware of it. Litigation over that small amount you might owe one intern can easily turn into a mountain of liability under the Fair Labor Standards Act and Wisconsin wage and hour laws.

2. If you have a social media policy, make sure it complies with state and federal law.

More and more states are passing laws that limit the social media information employers (and educational institutions) can require of employees (and students). Wisconsin is about to join the list of states that prohibit employers from asking for applicant or employee social media account information. Director Ohr’s opinion described a Northwestern football program policy that requires players to accept his coach’s friend request and otherwise allows the program to monitor athlete accounts. This policy would be unlawful under Wisconsin’s proposed Social Media Protection Act.

On the federal side, there are a number of laws that could be implicated if an employer seeks social media account information. Most notably, the National Labor Relations Board has taken a significant interest in employer policies that restrict employees’ Section 7 rights under the National Labor Relations Act. While employers should have a social media policy in place, making sure that policy is lawful is a complex task that should include the assistance of counsel familiar with these laws.

3. All employers need to be aware of their rights and duties under the National Labor Relations Act.

While the labor movement took a major hit in Wisconsin after 2011 Wisconsin Act 10 and the national private sector union membership rate is only 6.7%, the National Labor Relations Board remains a force to be reckoned with for almost any employer. As mentioned above, the National Labor Relation Board’s interest in social media policies took many employers by surprise because the National Labor Relations Board found many policies unlawful at companies with non-unionized workforces. Although the recent attempt to impose notice posting requirements through the National Labor Relations Board rulemaking process appears dead for now, other rule changes that are likely to increase its influence remain. These include changes to the representation case procedures that would speed up the time between a representation petition and election. So, just because employees aren’t unionized, does not mean an employer should tune out the National Labor Relations Act.