Second year pro football quarterback and Northwestern University alum, Trevor Siemian is making headlines on the field this season for the Denver Broncos. His alma mater is making headlines off of it in the realm of labor law. Again.
Last year, Northwestern’ s scholarship football players filed an action with the National Labor Relations Board (NLRB) seeking a determination that they are employees and as employees have the right to organize and join a union consistent with the National Labor Relations Act (NLRA). The NLRB’s Regional Director initially sided with the student-athletes, determining the scholarship football players are more employees than students. However, the victory was short-lived. The University appealed the Regional Director’s decision to the NLRB, which punted on the issue by dismissing the matter on jurisdictional (the NLRB concluded that it “would not effectuate the purposes” of the NLRA to assert jurisdiction ), rather than substantive grounds.
The NLRB decision didn’t completely shut the door on the players, explaining the Board would consider a reexamination of the issue “if the circumstances of Northwestern’s players or FBS football change such that the underpinnings of [the] conclusions regarding jurisdiction warrant reassessment.” This statement, coupled with the fact that the NLRB never addressed the merits of the argument may have made the University somewhat nervous, because the University made certain revisions to its “Football Handbook,” including changes to the Handbook’s social media policy. Specifically, the Handbook’s policy was revised from a broader policy barring athletes from social media posts that “could embarrass you, your family, your team… or Northwestern University” to specifically prohibiting the athletes from making posts that “contain full or partial nudity, sex, racial or sexual epithets, underage drinking, drugs, weapons, or firearms, hazing, harassment or unlawful activity.”
Earlier this week, the NLRB’s Office of the General Counsel admonished the University in an advice memorandum that it’s social media policy, prior to the recent modification, violated the NLRA. However, the memorandum explained that it “would not effectuate the policies and purposes of the NLRA to issue complaint in this case because the employer, although still maintaining that athletic scholarship football players are not employees under the NLRA, modified the rules to bring them into compliance with the NLRA and sent the scholarship football players a notice of the corrections, which sets forth the rights of employees under the NLRA.”
Specifically with respect to student-athletes, the memorandum appears to have temporarily reignited the debate over whether student-athletes are “employees” under the NLRA. Proponents of treating student-athletes the same as other employees point to a footnote in the advice memorandum stating “[w]e assume, for purposes of this memorandum, that Northwestern’s scholarship football players are statutory employees.” Northwestern maintains that its student-athletes are not employees and this is evidenced by both the memorandum’s current – and the NLRB’s previous – unwillingness to formally declare the student-athletes as employees.
In the broader sense, this week’s advice memorandum is a reminder to all employers that social media policies must pass muster under the NLRA. The NLRA provides employees’ with the right to engage in concerted activities for their mutual aid and protection. It is well-established that such “concerted activities” involve social media posts and communication through various social media platforms. Broad policies which can be interpreted to prohibit a wide array of social media posts may be unlawful under the NLRA. Social media policies that are more specifically tailored to prohibit certain egregious or intolerable actions are more likely to comply with the NLRA. Employers should review their social media policies and consult with local attorneys if any questions arise.