Legal Watch - December 14, 2016
December 14, 2016

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP

Survey Indicates Increase in Employer Holiday Parties This Year — HR Charged With Being the Monitor

HR consulting firm Challenger, Gray, and Christmas’s recent survey indicated that employers in general are holding more holiday parties in 2016 than in previous years and spending more money on them. The survey also found that it is becoming more common for HR departments to circulate a memo ahead of the party reminding employees of the employer’s policies on harassment, social media, conduct, dress code, drug and alcohol use, etc. Many HR departments are “deputizing” someone to monitor drinking and other activity at the party and to step in if something needs to be addressed. Finally, the survey found that some employers, although in the minority, are offering a community service give back as an alternative to a holiday party.

New Website Unveiled to Facilitate Online Unionization, Currently Targeting Retailers and Food Service Outlets

Online union organizing is gaining visibility with the establishment of the new website UnionizeMe.Org. While commentators are debating the effectiveness of online organizing, it could be a new way to reach young tech-savvy workers in certain occupations. The website is currently targeting retailers and food service outlets, and could easily be tailored to attempt to appeal to some college and university food and other operations. Commentators are recommending that employers treat this development much the same way they would address traditional in-person union organizing.

Court of Appeals Unanimously Dismisses Students Athletes’ Claims for Overtime Compensation as Employees Under the FLSA

The U.S. Court of Appeals for the Seventh Circuit recently affirmed the dismissal of a claim brought by former University of Pennsylvania track and field athletes against the college and the NCAA (Gillian Berger et al. v. NCAA et al. (Case No. 15-1558, 7th Cir., Dec. 6, 2016)). The plaintiffs sued the NCAA and 120 member schools alleging that student athletes are employees and entitled to overtime under the Fair Labor Standards Act (FLSA). The three-judge panel unanimously dismissed the lawsuit.

The court recognized that student athletes spend a “tremendous amount of time” playing for their respective schools. However, they have traditionally done so without any expectation of earning an income. The court concluded, “Simply put, student athletic ‘play’ is not ‘work,’ at least as that term is used in the FLSA.” The court went on to say that the student athletes “have not and frankly cannot allege that the activities they pursued as student athletes qualify as work sufficient to trigger the minimum wage requirements of the FLSA.”

The court unanimously concluded that student participation in college athletics is “entirely voluntary.” The Court also recognized the long tradition of amateurism in college sports and said that student athletes like all amateur athletes participate in their sports for reasons that are entirely unrelated to immediate compensation. The trial court judge had immediately dismissed the NCAA and 120 other member colleges from the lawsuit, as the plaintiffs were clearly not employees of any entity other than, allegedly, the University of Pennsylvania. The court of appeals affirmed this dismissal for the same reasons.

Public University Immune From Anti-Trafficking Lawsuit Brought by Non-Citizen Scientists Working on H-1B Visa

Two Serbian scientists (a married couple) who were recruited to work at the University of Oklahoma under the H-1B temporary work visa program alleged that their supervisor at the university made them work without pay for a separate private company under threat of deportation. The couple sued the supervisor and the university under the federal anti-trafficking and forced labor Law (Mojslivic v. Board of Regents of the University of Oklahoma (2016 BL 382520, 106th Cir., No. 15-6151, 11/17/17)).

The Tenth Circuit Court of Appeals dismissed the case against the university on sovereign immunity grounds (holding that the anti-trafficking law did not specifically indicate that it applied to states and public entities), but let the lawsuit continue against the supervisor and his private company. The court held that when Congress wants to apply a law to the states, it makes sure the law is specifically clear that it applies, and the court concluded that Congress simply did not do that when it passed the anti-trafficking and forced labor law.