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.”


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


  • 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.”

Higher Education and Cloud Computing

By:  Ryan J. Aaron
Jackson Kelly
Charleston, WV

In recent years, higher education has become increasingly invested in cloud computing.   While cloud computing may offer significant cost savings, it also facilitates data sharing and accessibility and meets the on-demand data expectations of today’s faculty and students.  There is a tradeoff, however, for higher education institutions that are tasked with complying with numerous federal and state laws that impact the use and retention of electronically stored information per such regulations as FERPA, HIPAA, FOIA, and PCI, as well as export control laws and electronic discovery obligations.  In an era where news of cybersecurity lapses and data breaches has become commonplace, these legal requirements make reliance on third-party cloud computing service providers worthy of concern.  Those in higher education should consider revisiting their cloud computing contracts to ensure they have adequate safeguards in place in the event vendor data systems are breached.

Professionals in higher education may be well-informed of the legal requirements with which their institutions must comply, but are their vendors?  What happens when vendor data systems containing sensitive information are breached? These questions and related issues should be addressed in vendor contracts.  For instance, the following questions may warrant further consideration when revisiting those contracts:

  • Data ownership
    • Who owns the data?
    • What restrictions are placed on the vendor’s use of the stored data?
  • Security and privacy
    • What standard is the vendor bound to comply with in maintaining the security of institutional data?
    • Does that standard differ for proprietary, personal, or regulated data?
    • Is the data encrypted and, if so, during storage, transmission, or both?
    • What safeguards does the vendor utilize to restrict access to data?
    • Is the vendor obligated to perform routine audits of its standards and security measures?
    • What notification is the vendor required to provide if a data breach occurs, and to whom and by when is such notification required?
    • Does the vendor account for state privacy laws applicable to student personal information (e.g., Massachusetts 201 CMR 17.00 et seq.)?
  • Location of data storage
    • Where is the vendor organized as a commercial entity and where will the data be stored?
    • What representations does the vendor make concerning compliance with applicable foreign law, available support and bandwidth, downtime, and timeliness of operations as they relate to the maintenance and accessibility of data stored in foreign jurisdictions?
    • Is research data stored with the vendor and, if so, out of concern for expert control implications and potential contractual obligations, does the vendor contract prohibit the storage of such data outside of the U.S.?
    • Is the stored data accessible by faculty, staff, or students located outside of the U.S. and what restrictions are placed on such access when sought from a foreign jurisdiction?
  • Litigation
    • Is the vendor required to provide the necessary support, tools, and information to enable and facilitate the institution’s accessibility and examination of stored data for e-discovery purposes?
    • Does the vendor agree to, and have the capabilities to, implement a litigation hold issued by the institution concerning stored data?
    • Can the vendor undertake completing a forensically sound copy of stored data without disrupting cloud operational or production services?
    • Is the vendor obligated to indemnify the institution for third-party intellectual property infringement allegations (concerning the vendor’s technologies or practices) and data breaches or inadvertent data disclosures?

Certain measures, including those considered above, as well as a customized privacy and cyber insurance policy, can help to protect against institutional exposure that may result from a data breach.  If, after taking another look at your vendor contract, you find that provisions critical to your institution’s protection are missing, then you might review the contract’s amendment and/or termination provisions to permit you to pursue the necessary safeguards.

Q&A: The Northwestern University Football Team Petition to be Represented by a Union

Michael H. Boldt & Stuart L. Brown
IceMiller LLP
Indianapolis, IN

As has been widely reported, football players at Northwestern University recently filed a petition with the National Labor Relations Board seeking an election to decide if they will be represented for purposes of collective bargaining by the College Athletes Players Association (CAPA), an organization backed by the United Steelworkers.  What follows is a series of questions and answers about issues raised by this development.

1.      Are the scholarship football players, all enrolled as students at Northwestern University, “employees” within the meaning of the National Labor Relations Act?
The petition reportedly seeks representation of the “scholarship” players on  Northwestern’s football team, and whether they are “employees” is the first question that the National Labor Relations Board (Board) will address.  The term “employee” is not defined in the National Labor Relations Act.  The Board has generally used a traditional common law approach (has someone agreed to perform tasks or services for someone else for compensation) to decide employee status and has used the “right to control” test to distinguish employees from independent contractors.  In most circumstances, the answer is obvious; in the case of the scholarship football players, it may not be.

Whether scholarship athletes can be deemed employees of a college or university has not been addressed by the Board previously.  However, it is known that scholarship athletes receive things of value in return for complying with requirements imposed by the college or university.  Scholarship football players generally receive the following at schools such as Northwestern:

  • A full scholarship (or grant-in-aid) that covers the costs of tuition, registration/lab fees, housing, meals and books.  Most scholarships are for a single academic year, although NCAA rules allow for multi-year scholarships.  Presuming a single-year scholarship, NCAA rules require notification of non-renewal of a scholarship for the next academic year by July 1.
  • Other products, services or arrangements in conjunction with team participation such as (i) apparel for practice and travel; (ii) travel to and from games; (iii) meal money after games; (iv) coaching; (v) physical health and development support (strength training, nutritionist, athletics trainer, team doctor); (vi) academic tutoring; and in some cases (vii) media training and promotion.

In return for such benefits, football players are expected to:

    • Adhere to academic rules of the school, such as:
      • Attending classes in a degree program
      • Often, attending mandatory study hall or tutoring
      • Achieving specified progress toward a degree with minimum grade-point averages
    • Attend practices and games on a schedule set by the school.
      • A typical in-season weekly schedule for a football player involves up to 20 hours of game competition, practice, strength training, film review, game travel and time in the training room for rehab and physical therapy.
      • In the off-season, players can be required to attend up to 8 hours per week of practice and conditioning.
    • Comply with rules of their school and rules established by the NCAA.

Many activities players are expected to perform (and almost all of their athletic activities) take place under the supervision, direction and control of university officials (e.g., coaches, trainers).  If players do not satisfy university expectations, there can be consequences including dismissal from a team and loss of a scholarship.

Whether the Board will deem the foregoing to constitute an employment relationship and the football players to be employees within the meaning of the National Labor Relations Act is unknown.  A closely, but not perfectly, analogous group of persons associated with universities that has been the subject of Board decisions are teaching assistants.  The Board has gone back and forth on the status of teaching assistants, initially finding that they were not employees eligible for union representation, then finding that they were, then returning to the original position that they are not.

Factors viewed by the Board in assessing teaching assistants included:

  • Their status as students
  • The relationship of the “work” performed to the student-workers’ education
  • The relationship between the persons who oversee or supervise the student-workers’ work activities to their education
  • The relationship, or quid pro quo, between the work performed and the benefits received by the student-worker.

Whether the Board will apply the same factors to scholarship athletes as it did to teaching assistants, and whether, if so, the Board will come to the same conclusion, is unknown.

2.      If the Board determines the football players are employees, what happens next?
The Board will assess the group of football players seeking representation to determine if they constitute an appropriate bargaining unit—an appropriate group to make the decision on union representation for the people involved and who have enough employment interests in common that collective bargaining would address their common employment terms effectively.

In the past as new industries became subject to union organizing, disputes about whether a bargaining unit was appropriate were often protracted and thus delayed elections to decide questions concerning union representation.  However, in the wake of the Board’s decision in Specialty Healthcare a few years ago, it is less likely that disagreements over whether a larger, or otherwise different, bargaining unit might be more appropriate will delay an election.

The bargaining unit sought in the Northwestern University petition is reportedly made up solely of football players on scholarship.  The Board may need to address whether such a unit is appropriate since the non-scholarship athletes (the walk-ons) are an integral part of the team and a bargaining unit that leaves them out may not be able to represent the interests of all those who must work together for the success of the enterprise.

3.      Will the Board conduct an election if it finds the bargaining unit appropriate?
If the Board finds the bargaining unit appropriate, it will then review the evidence submitted by the Petitioner (CAPA) to determine if at least 30 percent of the athletes in the unit have expressed an interest in union representation, or at least interest in having an election to resolve the question.  If so, the Board will proceed to schedule the election; if not, the Board will either dismiss the petition or advise the petitioner that it must come up with more evidence of interest in the election or union representation before it will proceed.

4.      When would an election be scheduled?
The Board tries to resolve questions concerning representation quickly, attempting to hold elections within 42 days from the date a petition is filed.  In the Northwestern University case, it is possible that protracted appeals of the question of employee status or of the appropriate bargaining unit could delay any election for a significant amount of time.

5.      How is the outcome decided?
The election is decided based on the number of votes cast by eligible members of the bargaining unit.  If at least 50percent plus one of the valid votes cast are in favor of union representation, the union will be certified as the representative of the football players for collective bargaining.  Note that the majority that determines the outcome is not a majority of those eligible to vote, but by a majority of those eligible who actually vote.  Just as in political elections for Congress or the presidency of the United States, voter turnout is important—if there are 80 eligible voters, but only 40 actually vote, 21 votes will be enough to decide the issue for everyone in the bargaining unit.

6.      What happens between the date the Board orders an election and the election itself?  Is there a campaign?
There can be a campaign.  The union and the employer (Northwestern in this case) are permitted to communicate with eligible voters to persuade them to vote in favor of or against union representation.  However, there are rules. For example, the employer and its agents are prohibited from interfering with the employee’s choice by threats, interrogation, promises of benefits (bribes) or spying on the employees’ discussions or other activities about union representation.[i]  The union and its agents are prohibited from coercing or restraining employees’ choice by threats or bribes.

7.      If the football players do not vote for union representation, what happens?
If the football players do not vote the union in as their bargaining representative, and the Board certifies the result of the election (finding no objectionable conduct occurred on the part of the employer that interfered with the result), no question concerning representation may be raised again in the same bargaining unit for at least 12 months from the date of the election.

However, many additional questions will have been raised by the Board’s determination that the football players are employees within the meaning of the National Labor Relations Act.   Among the questions are:

  • Will the football players be deemed employees for purposes of the Fair Labor Standards Act—the statute that, among other things, requires minimum wage and overtime payments to employees for all hours worked?
  • Will the football players be deemed employees for purposes of state Worker Compensation laws that require coverage for injuries/illnesses that occur in the course of employment?

8.      If the football players vote the union in, what happens?
If the football players vote for the union, and the Board certifies the result of the election (finding no objectionable conduct occurred on the part of the union that interfered with the result), then Northwestern will have a duty to bargain with the union in good faith for an agreement concerning the “wages, hours and other terms and conditions of employment” of the football players.

9.      What are the topics that must be bargained?
The topics over which bargaining must occur upon request of either the union or the employer are called mandatory subjects of bargaining.  They include any aspect of employment that falls within the broad phrase “wages, hours and other terms and conditions of employment.”  How that phrase may be applied in the case of scholarship football players is unclear.  “Wages” could include stipends in addition to the value of tuition; “hours” could include practice time and film viewing time, the time that athletes need to report for game travel, perhaps even the start of game time; “other terms and conditions of employment” could include medical benefits, athletic eligibility, tutoring assistance or other items.  The list of subjects is not endless, but neither are its limits predictable.

10.  Can this (a union election and collective bargaining by student-athletes) happen at any college or university?
Generally speaking, only private colleges and universities are subject to the National Labor Relations Act and to the jurisdiction of the Board.  However, many public colleges and universities created and run by states and other political subdivisions may be subject to state laws that provide for union representation and collective bargaining for public employees.  The rules and procedures governing the election and bargaining process in each state need to be examined to see how they may apply to the scholarship athletes in those jurisdictions.

11.  Does the fact that all scholarship athletes will be at a given university only a few years, guaranteeing 100 percent turnover of the bargaining unit every few years, have an impact on the question concerning representation?
No, not under current Board law.  Once a bargaining unit of employees has elected a union to represent it for purposes of collective bargaining, the union remains the representative of the bargaining unit until the union disclaims interest and “walks away” or is “decertified” in a subsequent Board election.  Unless and until one of those events occurs, the Board presumes that a majority of the bargaining unit continues to support the union as the representative of the bargaining unit regardless of the amount of turnover in the ranks of the bargaining unit.

12.  How does “decertification” occur?
Once a union is certified as the representative of a bargaining unit, its representative status may not be challenged for at least a year while it attempts to negotiate an initial collective bargaining agreement.  Once a collective bargaining agreement is agreed upon, then with the exception of a brief period of time shortly before the agreement expires, no question concerning representation may be raised challenging the union’s representative status during the agreement’s term, for up to 3 years.

The brief period of time during which a question concerning representation may be raised is the 30-day period between 90 and 60 days before the collective bargaining agreement expires.  During that 30 days, a petition may be filed with the Board seeking an election to see if the union will continue to be the representative of the employees in the bargaining unit.

There is a different rule in cases of collective bargaining agreements that last longer than 3 years.

A decertification petition filed by employees must be supported by the same minimum 30 percent “showing of interest” in getting rid of the union as was needed for the initial certification election.  The employer may not instigate the petition—it must be an effort initiated and led by the employees themselves.

Such a petition may also be filed by the employer, if the employer has objective evidence that a majority of the employees in the bargaining unit no longer wish to be represented by the union.  This type of petition is rare.

                                                              * * * * *

To further discuss issues like the Northwestern University football player union organizing effort or other employment or athletics issues that arise in the context higher education please do not hesitate to contact Ice Miller LLP.

This publication is intended for general information purposes only and does not, and is not intended to, constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

[i] Details about permitted vs. prohibited campaign communications and tactics are beyond the scope of this Q&A.  More information is available from labor and employment lawyers at Ice Miller LLP.

New Report Focuses on the Plight of Adjunct Professors

By:  Euphemia Thomopulos
Hirschfeld Kraemer LLP
San Francisco, CA

A new report released by the House Committee on Education and the Workforce, Democratic Staff, “The Just In-Time Professor” highlights a problem that many in the academic community are all too familiar with – poor working conditions for adjunct professors.  The report notes that adjunct professors now represent half of all higher education faculty.  Despite their prevalence at colleges and universities, adjunct professors face a number of problems.  The report notes that adjuncts are usually paid a piece rate, regardless of how much time it takes them to prepare for their courses.  As a result, out of the one hundred and fifty-two adjuncts that provided their estimated annual teaching salary to assist with the report, the median income was $22,041, below the poverty line for a family of four.  The report notes that many adjuncts are forced to rely on public assistance programs such as food stamps and Medicaid.

In addition to low wages, adjunct professors are often denied access to benefits, with some institutions going so far as to cap adjuncts’ teaching loads to avoid having them qualify for benefits.  One adjunct told the authors of the report, “[b]enefits are really out of reach at my pay scale.  The health care plan that I could buy into costs more than my take-home pay even on a good year (and far more than I earn on a bad year). I don’t earn enough to save for retirement (every month is a struggle just to pay the basic bills). My ‘retirement’ plan is to work until they bury me.”

In addition to low pay and no benefits, the report highlights the link between student outcomes and the poor treatment of adjuncts, noting that lack of preparation time or even a place to hold office hours makes it difficult for adjunct professors to best serve their students.

There is some hope, however.  “The Just-In-Time Professor” report marks the first time Congress has formally recognized the challenges many adjunct professors face.  Representative George Miller, a senior Democrat on the House Committee on Education, states that he intends, along with other Democrats and his staff, to work with institutions to find ways to improve adjuncts’ working conditions in the future.

One way institutions can assist adjuncts is to be cognizant of their needs.  Appoint someone in your administration to work specifically with adjuncts to address their concerns.  If possible, provide adjuncts with office space and preparatory time in order to assist them in managing their schedules.  If an adjunct is working at multiple institutions, talk to them about their schedule and ways the institution can accommodate them.  Recognize that your adjuncts may be working full-time for lower pay and try to accommodation their requests if at all possible.

Scorecards and Navigators: Higher Education Law in a Consumer Culture

By:  Michael Porter
Miller Nash LLP
Portland, Oregon

I am preparing to write an article for Campus Legal Advisor about how the consumer culture and consumer laws affect the work of higher education administrators.  That article will focus on day-to-day work of campus administrators, but here I’m thinking about how the consumer culture on campus affects how we practice as higher education lawyers.

Before practicing law, I worked in student affairs/student services.  Even 20 years ago, those of us in the field wrestled with tension between the educational aspect of our work (educating the whole student) and the undeniable fact that students or their families were “customers” paying for housing or food or even student-activities fees.  That understandably creates a sense of entitlement to “something” for one’s money.  And while the customer sentiment may make some of us harken back to the more faculty-centered view of the “Academy”—a center for intellectual endeavors and the pursuit of knowledge—the customer and student-centered approach is now a reality.  And the federal government’s College Navigator and College Scorecard now make looking at college options a bit like purchasing an airline ticket, and students and parents presumably click through net price calculator disclaimers the same way people click through updated terms and conditions to use their favorite mobile app.  These initiatives also reinforce the notion that attending college is more of a buy-sell transaction than engagement between a student and the faculty to engage in academic discourse in the pursuit of knowledge.

I remember as a residence life director sorting out a dispute related to the way the sun was shining in a resident’s window.  The 25-year-old hall director in me thought, “Get over it.”  The parent in me now worries about what the cost of on-campus life will be when my kids go to college, and if we are paying for housing and the sun wakes our baby up too early and it affects his studies, then maybe we’re not getting what we are paying for.

Bringing this back to practice as a lawyer supporting colleges and universities, the tension plays out in the filings that relate to consumer-protection laws, breach-of-contract claims, and economic torts invoked by litigant students making claims against schools.  There are law firms dedicated to seeking out potential claimants for claims under the Uniform Trade Secrets Act against for-profit institutions of higher education, and assertions of misrepresentation, consumer statute violations, breach of contract, and even fraud against all types of institutions are becoming more common.  The increase in this type of claim creates a challenge with respect to how we advise our clients and how we litigate claims.

I often like to ask, “What do you think is the appropriate thing to do as an educational matter?”  The answer to this question usually results in a legally supportable approach to a problem that we as lawyers can defend in any subsequent litigation.  But now in the modern consumer-driven world, as much as I’d rather not acknowledge it, we cannot ignore the fact that our advice must consider that a judge or a jury may insist on seeing a matter through the lens of a more traditional consumer transaction.  When defending an action, I want to be able to tell both stories—in other words, I want to be able to show how almost every interaction an institution has with its students has an educational component, but also that a consumer would find the bargain a fair one.  Most of the time, the educational aspect of a situation and the consumer aspect are not mutually exclusive, but they may not be completely congruent.  It seems that intentional recognition of when and how these lenses may affect an approach to a problem has become more and more necessary as our institutions of higher education expand what they offer and how they offer it, and as students and families (and their potential lawyers) become more sophisticated about ensuring that they get what they pay for.

I certainly welcome observations or reflections that might stimulate thinking on this tension.

Obama Creates Task Force to Review Title IX Compliance

By:  Euphemia Thomopolus
Hirschfeld Kraemer LLP
San Francisco, CA

On January 22, President Obama held a meeting with members of his administration to review their efforts to reduce sexual assault and sexual violence on college campuses.  During the meeting, Obama signed a presidential memorandum creating a task force specifically designed to address sexual assault and sexual violence on campus. This comes after a year where complaints about institutions’ failures to comply with Title IX requirements were consistently publicized.  The task force includes the attorney general and the secretaries of the Education, Health and Human Services and Interior Departments.

It will have 90 days to recommend actions that colleges and universities can take to prevent rape and sexual assault and to respond to allegations; investigate ways to raise awareness of institutions’ records regarding sexual assault and sexual violence; and assist federal agencies in investigating institutions that fail to address complaints of this nature.  The creation of this task force indicates that institutions will come under even more scrutiny for Title IX violations in 2014 than they did in 2013.

If you believe your Title IX policy is not in compliance, we recommend you contact your legal advisor.