NLRB Calls Audible — No Union for Northwestern

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Over a year ago, the regional office of the National Labor Relations Board (NLRB) in Chicago concluded that scholarship athletes on the Northwestern University football team were “employees” within the meaning of the National Labor Relations Act, giving them the right to unionize and bargain over terms and conditions of their purported employment. The ruling garnered national attention and raised the specter of a massive shift in how college athletics operated. However, on August 17, a panel of the NLRB reviewing the Regional Director’s ruling declined to exercise jurisdiction over the petition to unionize Northwestern University’s football players. Essentially declaring that the Regional Director’s initial authorization of the petition was a false start, the NLRB emphasized the practical realities of the case in concluding that allowing the petition would not “promote stability in labor relations.” It noted that the vast majority of Northwestern’s FBS competitors are public universities over which the NLRB has no jurisdiction. Since major college football is interconnected, the NLRB reasoned that allowing one school’s players to be unionized would not promote labor relations and might upset the balance of competition. Northwestern, the only private school in the Big Ten within the NLRB’s jurisdiction, did not need another competitive hurdle, and issued a statement, along with the National Collegiate Athletic Association (NCAA), applauding the decision. Continue reading this entry

New Social Security Card Application Requisites Raise Eyebrows

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On August 10, 2015, the Social Security Administration (SSA) adopted a final rule that, as of September 9, 2015, eliminates the requirement that applicants seeking to obtain a new or replacement Social Security number card submit “documentary evidence.” The Social Security number (SSN) is issued on a Social Security Card and consists of a nine-digit number issued to U.S. citizens, permanent residents, and temporary (working) foreign nationals residents. The number is issued by the SSA, an independent agency of the United States government. Although its primary purpose is to track individuals for Social Security purposes, the Social Security number has become a de facto national identification number for taxation and other purposes. For employers, the card serves as one of the primary forms of employment eligibility on USCIS Form I-9. Continue reading this entry

Labor Board Hounded by Another Appointment Controversy

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For much of the Obama Administration, the National Labor Relations Board (Board) has been operating as, at least from the perspective of some, a rogue agency (and not just because of its willingness to overturn precedent to expand union and employees’ rights). With just two of the required five members for the first two years of the Administration, the Board lacked a quorum to make binding decisions. Last year, the U.S. Supreme Court unanimously invalidated more than a year-and-a-half of Board decisions, ruling that the president’s recess appointments of three Board members were unconstitutional. In a further check on the Administration’s actions relative to the Board, on August 7, a federal appeals court ruled unanimously that the president’s appointment of the Board’s top prosecutor and legal advisor was also unlawful. Continue reading this entry

Separately Assessing Separation Agreements

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Separation or severance agreements —which typically provide a terminating employee with some kind of cash payment, temporary salary continuation, or other gratuitous benefit in exchange for a release of claims — have their usefulness in many circumstances. Employers often use them in connection with reductions in force, both as a means to cushion the blow for employees whose positions are eliminated and to minimize the risk of multiple claims. It may also make sense when an employer must terminate a problem employee for performance of behavioral reasons to consider offering the miscreant employee a separation agreement primarily as a way to mitigate risk. It also seems to be somewhat common in this start-up era that entrepreneurial companies, focused on product or platform development but (understandably) lacking in human resources know-how, believe they are required to provide separation benefits whenever employees depart — even in the case of a voluntary resignation — and do so in all circumstances based on that mistaken belief. Continue reading this entry

The Long Reach of the National Labor Relations Act

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Non-union employers are often under the misimpression that they are not affected by the National Labor Relations Act (NLRA) — the federal statute governing union-related issues in the private sector. A recent court decision stands as yet another reminder that this is not the case, and that non-union employers can still run afoul of the NLRA’s ever-changing requirements (and that employees and their advocates are increasingly using the NLRA to pursue claims against employers, even non-union employers). Continue reading this entry