If there was any doubt remaining that the Biden administration is the most pro-labor in history, it has been thoroughly obliterated by Jennifer Abruzzo, who he named General Counsel of the National Labor Relations Board.
At the end of September, she wrote a memo declaring college athletes are employees and should be paid accordingly.
She also used that memo to begin laying out a whole new strategy distorting labor law in favor of unions and launching a new enforcement assault on employers at the same time.
Abruzzo insists that the term “student athlete” was concocted by the National Collegiate Athletic Association with the deliberate intention to deceive and she rejected its use in any context.
“While Players at Academic Institutions [PAI] are commonly referred to as ‘student-athletes,’ I have chosen not to use that term in this memorandum because the term was created to deprive those individuals of workplace protections,” she declared.
Abruzzo’s memo reverses a position taken by the board during the Trump administration, which had altered the direction set by the Obama-era board.
Abruzzo says she believes players are employees in situations where they generate considerable profit and other benefits for their universities.
In June, the U.S. Supreme Court chose to reject the NCAA’s antitrust defense that was based on “amateurism” as the basis of college sports. Although players are not yet paid salaries, they now can receive related benefits previously denied them, such as laptops, tutoring or study-abroad programs.
One result was that the NCAA also approved a names, images or likeness policy allowing athletes to earn money with social media (such as Internet influencers), teaching and signing autographs.
Abruzzo also announced other major NLRB policy changes that she buried in the document’s footnotes. For example, she mentions in passing that student teachers and research assistants also should be considered employees under the law.
In another footnote, Abruzzo said she would consider applying a joint employer theory of liability in some cases, which would allow allegations violations of law. This means the NLRB could pursue charges against the NCAA and other college athletic conferences that exercise control over college players.
Seeking Aggressive Enforcement
In a separate memo to the NLRB regional offices that Abruzzo issued on Sept. 8, she instructed the regions to aggressively pursue expanded remedies in a wide array of cases, and to prepare cases for the board to hear to increase the scope of damages imposed various infractions.
The types of remedies specified by Abruzzo that would significantly increase costs employers face in Unfair Labor Practice litigation include:
Consequential damages and front pay for improperly discharged employees. NLRB regional offices are expected to affirmatively seek these expanded remedies in discharge cases.
Expanded union access. In cases involving employer ULPs that occur during union organizing campaigns, required remedies include providing unions with employee contact information and allowing unions to hold “captive audience” employee meetings on company property.
Reimbursement of union organizing costs. New cases may seek to require employers pay business agent wages, attorney fees, travel costs and other costs unions incur where an employer’s objectionable conduct results in a union election being re-run.
