Natasha Baker Comments on Law360 Regarding SCOTUS Affirmative Action Decision

Hirschfeld Kraemer LLP Partner Natasha J. Baker is quoted in the Law360 article “Lawyers Weigh In On High Court’s Affirmative Action Ruling,” recapping the high court’s decision in the case Schuette v. Coalition to Defend Affirmative Action.

Baker offered the following:

The court’s ruling in Schuette, upholding Michigan’s ban on consideration of race as a factor in admissions, impacts the integrity of the political process and diversity in higher education. Its impact on the political process is the mathematically obvious problem that the minority can never overcome the majority of voters, which is permissible in a democracy, unless the legislation burdens only a racial minority. Rejection of this doctrine erodes this critical limitation. Its impact on diversity in higher education can be predicted by the immediate and sustained decrease in minority admissions following California’s passage of comparable legislation in 1996.

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NLRB Judge Finds That College Football Players Are Employees Of Their University

By:  Dan Handman
Hirschfeld Kraemer LLP
Santa Monica, CA

The California Workplace Advisor – Hirschfeld Kraemer LLP
Yesterday, an administrative judge at the National Labor Relations Board (NLRB) found that student athletes on Northwestern University’s football team who receive a scholarship are employees of the university and therefore eligible to form a union. The decision, while not the decision of the full NLRB, is a major departure from NLRB precedent and one very fraught with consequences for universities and other employers in educational fields. The central issue was whether student athletes met the definition of employees. Because the National Labor Relations Act does not define the term “employee” (it actually defines “employees” as a term which “includes employees”), the NLRB focused on two common law factors: (1) whether the football players are paid by the university in exchange for providing services; and (2) whether they are subject to the “control” of the university.   To a certain degree, college football players are controlled by the university – they have set schedules, they are required to attend meetings and practices, and they are subject to a code of conduct – so, ultimately, the decision turned on whether the football players are paid by the university and if so, whether they provide services. On those two issues, the judge found that the football players provide “valuable services” for the university because the football team generates significant revenues for the university from ticket sales, television contracts, and merchandise sales. It also relied on the fact that the football team attracts alumni donations and college applicants – something which the judge found to be an “immeasurable positive impact.”

The larger issue was whether the student athletes are compensated for their “services.” On this, the judge found that the scholarship provided by the university was compensation for services. In particular, student athletes at Northwestern are provided grant in aid totaling $61,000 per year for tuition, room and board, and books, but they do not actually receive any compensation – it is provided directly to the university. They do not pay taxes on this “compensation,” nor are withholdings taken from those amounts. Nevertheless, the NLRB focused on the fact that the student athletes sign a “tender” which allows a scholarship to be canceled if a student athlete voluntarily leaves the football team or violates the university’s code of conduct.   The judge found that this tender was an employment contract and that the scholarships received are compensation.

This decision is not final. It will almost certainly be appealed to the full NLRB (which is composed of 5 members, 3 of whom have experience representing unions) and thereafter will be reviewed by either the Seventh Circuit Court of Appeals or the D.C. Circuit. Although most experts expected this decision and expect the NLRB to uphold it, few think it will survive scrutiny by a court.

Nevertheless, the decision puts universities in a very difficult spot. While this judge’s decision has no precedential effect outside of Northwestern University and in many respects it contradicts the NLRB’s 2004 decision which found that graduate teaching assistants at Brown University were not employees. This judge distinguished the Brown University decision, finding that unlike the teaching assistants, student athletes on a scholarship are not “primarily students.” But, how is a university supposed to make decision about whether a student who receives some benefit is “primarily” a student or not? The judge here provided no guidance.

And it goes without saying that this decision is yet another in a trend of very union-friendly decisions by the Obama NLRB. Most employment lawyers expect that the Brown University decision will be the next domino to fall and, in fact, when the NLRB hears the appeal of this decision it would not be surprising if the NLRB overruled or at least undermined the Brown University decision.

Upcoming Webinar: “The NLRB Comes to Campus: An Update on Union Activity at U.S. Institutions of Higher Education”

The Employment Law Alliance invites you to attend our free March 19 webinar, “The NLRB Comes to Campus: An Update on Union Activity at U.S. Institutions of Higher Education.”

Description

The NLRB is posed to revisit many issues affecting U.S. colleges and universities in ways that will have lasting impact on union activity on campus. Thus, all institutions of higher education should be aware of recent and pending developments in order to stay abreast of these issues.  Join us as a panel of experts from across the U.S. discusses recent union organizing efforts as well as the NLRB’s recent activities on campus. They will provide a national perspective and timely updates in the following key areas:

  • The National Labor Relations Board (“NLRB”) is revisiting Yeshiva. Learn how this landmark Supreme Court decision, which classifies faculty as members of management, is being reviewed.  This and other recent NLRB activities will be discussed.
  • Student-athletes? Graduate students? The evolving definition of employees covered by the National Labor Relations Act (“NLRA”).
  • Religious or state institution?  Employer “once removed”?  Learn about the increasing uncertainty of exemption from the NLRA and the NLRB’s use of joint employer status to assert coverage.
  • Contingent faculty? An update on adjunct organizing efforts around the country.

Start Time (be sure to confirm your corresponding local time):

  • 3:00 – 4:30 p.m. US EDT
  • 2:00 – 3:30 p.m. US CDT
  • 1:00 – 2:30 p.m. US MDT
  • 12:00 – 1:30 p.m US PDT
  • 9:00 – 10:30 a.m. HAST

Speakers:

  • Anna Elento-Sneed, Alston Hunt Floyd & Ing, Honolulu, HI, Moderator,
  • Natasha Baker, Hirschfeld Kraemer, San Francisco, CA
  • Peter Jones, Bond Schoeneck & King, Syracuse, NY
  • Mark Mathison , Gray Plant Mooty, Minneapolis, MN
  • Joshua Salsburey, Sturgill, Turner, Barker & Moloney, Lexington, KY

To register, please click here.

  • If unsure when prompted for “Name of ELA law firm that invited you,” enter “Higher Education Council Report.”
  • If unsure when prompted for “Name of ELA lawyer at that firm you work with,” enter “All.”