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NLRB Refuses to Allow Northwestern Football Players Opportunity to Form a Union

NLRB Refuses to Allow Northwestern Football Players Opportunity to Form a Union

By:  Dan Cohen – 8/22/15

Earlier this week, the NLRB unanimously ruled that Northwestern football players could not form a union. The ruling overturns the 2014 decision of the NLRB Regional Director in Chicago that college football players at Northwestern were employees of the University, who could be represented by a union (See e.g. 3/27/14 Post, “A New Concept of Offensive Linemen…Ready to Line Up Against University Administration”). The NLRB did not base its ruling on the central legal question, “whether student athletes were employees of the university.”

Instead, the Board’s decision recognized that since it did not have jurisdiction over state-run colleges and universities, which make up 108 of the roughly 125 teams, and because Northwestern was the only school in the Big 10 that was not state-run, “asserting jurisdiction over a single team would not promote stability in labor relations.” Had the NLRB exercised jurisdiction over the Northwestern football players, that decision would have affected all private schools with football programs in the NCAA’s top tier, including Baylor, Boston College, BYU, Duke, Miami, Northwestern, Notre Dame, Rice, SMU, Stanford, Syracuse, TCU, Tulane, Tulsa, USC, Vanderbilt and Wake Forest.

What we won’t know now as a result of this decision is how the football players voted since their ballots were sealed when Northwestern appealed the Regional Director’s decision allowing the vote to go forward. Frankly, with Northwestern Coach Pat Fitzgerald lobbying against unionization and players publicly announcing they would vote no, a vote in favor of unionization was far from certain.

The NLRB has essentially punted on the issue (no pun intended). However, some of the concerns raised by those pushing to unionize the student-athletes at Northwestern have been taken up elsewhere, and some reform has already begun. For example, in January, the schools that make up the NCAA’s five biggest conferences voted to allow college athletes to be paid stipends that cover more than tuition, room and board, and meals. The NCAA will reportedly distribute almost $19 million to the nearly 350 Division I schools for that purpose. The Big Ten and Pacific-12 conferences now guarantee four-year scholarships, and the Pac-12 guarantees medical coverage for athletes injured during competition for up to four years after graduation.

The wake-up call to the NCAA might just be the legacy of the failed attempt to unionize the Northwestern football team. While there is still more to do, I think reform is the a better answer then turning the game upside down by having some players unionized while the vast majority of others remain union free.

The Unintended Consequences of $15 an Hour

By:  Dan Cohen – 8/13/15

Ironically, there have been reports out of Seattle and elsewhere, where the minimum wage has been pushed to as much as $15, that some employees have requested cutbacks in their hours to avoid risking their entitlement to public food, housing and child care subsidies. I thought the increases were designed to lift people out of poverty and move them off of public assistance? Well, so much for that theory. If these reports are true, then we have accomplished nothing more than placing an additional financial burden on businesses.  I, for one, can hardly wait for the statistics to come out in New York in terms of how many individuals are coming off of public assistance because of the recent statewide increase in minimum wage for fast food workers.  Politicians need to quit doing things for the sake of popularity and start thinking about what is best for the economy and nation as a whole.  Flipping hamburgers at McDonalds is not supposed to be a career.  It is entry level and should be for students.

At some point, we need to stem the tide of this entitlement mentality or we will crash and burn as a nation. Think about it: if there are fewer and fewer people paying into the system and more and more recipients of these entitlements, the math will simply not work. We see this exact problem with defined benefit plans where there are more and more retirees, fewer and fewer contributing employers and fewer and fewer employees for whom the contributions must be made. The math no longer works, and those plans cannot stay above water much longer. Some are already in critical and declining status and will be or already have been cutting benefits. We are heading in that same direction as a nation of entitlements.  Reforms are needed.

Politics aside, let’s look at the situation reported out of Seattle and see what it could mean to employers. Employers faced with requests to cut hours have options at their disposal.  They can grant the requests if it makes sense to their business. If the request means the employee will become part-time, it can actually result in loss of benefits and designation as part-time under the Affordable Care Act.  Of course, if an employer has been significantly impacted by increased minimum wage levels, the decision could be made to use a workforce of part-timers, who are not eligible for benefits, including health care.

Employers also can deny the request for reduced hours. There is no law that obligates an employer to grant a request for reduced hours as long as the decision is not discriminatory.  Depending on the nature of the business and the local job market, this could result in difficulty finding employees to fill those hours, especially if enough employees seek reduced hours.  Moreover, employers may not want to run ads, interview, train and orient new workers to the business. This takes time and money and can be frustrating.  Employers may also be concerned that reducing hours can result in burdens upon other employees, particularly, if schedules must be adjusted.  While denying the request might be best under a particular business model, employers must accept the possibility that its denial might result in an unhappy employee, who starts looking elsewhere. Maybe that’s a good thing, but maybe it’s not for all the above reasons.

Employers who deny such requests may face self-help remedies in the form of attendance issues if employees take matters into their own hands and reduce their hours by calling off work, making up reasons to leave early, and making themselves unavailable for voluntary weekend assignments, for example. It is for this reason amongst others that employers should have tight attendance policies that enable them to discipline employees for not following call-in procedure, not producing doctor’s notes, for poor attendance, missed assignments, refusals to work weekends and the like. If discipline is necessary, it should be even-handed and well documented as discharges for poor attendance often result in unemployment claims that can easily be lost.

RESPONDING TO THE PERSONNEL FILE REQUEST:  THE EMPLOYER’S OPENING SALVO

RESPONDING TO THE PERSONNEL FILE REQUEST: THE EMPLOYER’S OPENING SALVO

By:  Bill Pilchak – 8/6/15

A recent consultation suggests it is time for a refresher on the subject of producing a personnel file. Employers in Michigan have an obligation to supply a copy of all personnel records regarding an employee upon written request under the Bullard Plawecki Employee Right To Know Act. Sixteen other states grant similar or greater rights to employees of private companies and most states require public employers to provide the file to their employees on request. (Those states are listed at the end of this article.)

In Michigan, an employer is required to produce every “personnel record,” defined as “a record kept by the employer that identifies the employee, to the extent that the record is used, or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action.”

Some companies take a narrow view as to what constitutes a personnel record. A request to a company with this perspective might result in the production of only dry personnel action or status change forms, W-4 forms and the employment application. After all, those are the traditional “personnel records.” However, look again at the definition.   A personnel record is a record that identifies the employee:

  • And “has been used…relative to that employee’s…disciplinary action,”
  • Or “may…affect…that employee’s qualifications for…promotion,” etc.

Most discharges involve documents that bear the terminated employee’s name and which have been considered in the decision to discharge:

  • The six e-mails from various co-workers reporting that the employee could be heard shouting and hurling F-Bombs at a supplier inside his office;
  • The PowerPoint containing the account rep’s name on page 1, and a dozen or so mistakes that she presented to a valued customer to the embarrassment of the Company;
  • A security guard’s signature on the daily activity report indicating that he left at 11:00 p.m., when video shows him abandoning his security post and leaving the facility at 10:30.

Unconventional personnel records can be important in a non-discharge context: if the results of a sexual harassment investigation lead to the conclusion that a supervisor conducts himself so recklessly that he would not be considered for promotion, that documentation of the investigation is a personnel record that must be produced upon request.

The penalty for not producing the personnel record is that the employer is stripped of the ability to use the non-produced document in any litigation filed by the employee – although the employee may use the record if it favors his case. In most cases, the company that considers only the ”traditional” personnel forms to be personnel records will be deprived of their best evidence at trial. Imagine not being able to present the error-laden PowerPoint to a jury when that was the straw that broke the camel’s back. How does one convince a jury that the security guard falsified the daily activity report without introducing that record at trial?

In the non-discharge context, if the supervisor who had been the subject of the harassment investigation in 2013, requests his file in 2014 and sees no reference to the investigation, he might have a better case to argue he was passed over for promotion in 2015 because of age, race, etc. If the results of the 2013 investigation suggested he should not be promoted in the future, some document to that effect should have been provided.

Beyond what MUST be produced to the employee, is the question: What SHOULD be produced? Employees don’t request their files to entertain themselves. They turn the file over to an attorney who advises them whether they have a chance of fooling a jury into believing they were fired for race, sex, national origin, age, etc., instead of the Company’s legitimate business reason. If the file contains no documentation of that legitimate business reason, it is easier for the attorney to convince a jury that the reason for discharge was an illegal reason: discrimination, retaliation, etc. Imagine the argument to the jury: “Of course there’s no documentation of the reason for termination…because it was an illegal reason!”

Wise employers produce a personnel file that show they are loaded for bear! Ideally, it contains a termination memo or letter that specifically identifies the reason(s) that termination must occur. They then collect every scrap of paper and every electronic record that shows: a) how many people were attuned to or dealing with the issue; b) the problems the employee caused, such as scrap parts, increased costs, late fees and penalties, missed customer deadlines; c) and most importantly (according to consultants who assess juror attitudes) the burdens placed on other employees, etc. In this respect, HR should assume the role of detective, considering what documents and e-mails exist to show the employee was released over a real issue that had real implications. Ideally, this is done at the time of termination, since it is sometimes hard to resurrect documents and e-mails that made the difference months or years later. However, if not then, certainly, those documents should be gathered up and turned over when the file request arrives. Moreover, ideally, the employer will number the pages produced (by hand, if necessary) and retain a photo-copy of what had been produced, so the employee cannot claim the crucial document was not supplied.

Finally, let me relate a real life story to make the ultimate point of this article. For many – perhaps 15 -years, not one of our clients had ever been sued over a discharge where our firm had consulted and assisted with the termination letter/memo. Finally, one such employee sued. At the deposition, the we sought to assure that employee was provided with the personnel file pursuant to the request we saw in the file. So, the employee was asked what he did with the stack of papers he received in the mail. The employee testified that after the first five attorneys he consulted refused to take his case upon reviewing the personnel file, he threw it out and met with the attorney who now sat at his side, thus alerting counsel that he was stuck in a case that five other attorneys would not touch.

When you send a personnel file, make sure it contains material that shows there was a business reason, not an illegal reason, for such an important decision. And, be sure you are complying with the particular state statute on producing personnel records.

 STATES REQUIRING PRODUCTION OF PERSONNEL FILES BY PRIVATE COMPANIES:

AK, CA, CT, DE, IL, IA, ME, MA, MI, MN, NH, OR, PA, RI, WA, WI