In recent years, hard-working and underpaid young people are rising up to assert their rights as employees. Whether as interns, research assistants or athletes, students work long hours making valuable contributions to businesses and universities without receiving the protections of employment and labor laws. There are numerous questions that surround these issues, but all the factors and tests really boil down to one question: how much are student workers actually learning versus how much are they benefiting the business or university receiving their services?
In March 2014, the National Labor Relations Board found that Northwestern University football players who receive scholarships are employees as defined in the National Labor Relations Act and are therefore entitled to unionize. The NLRB based this decision on the long list of rules that Northwestern football players must follow, including: where they can live, mandatory acceptance of coaches’ social media “friend” requests, behavioral guidelines, dress codes off the field, mandatory permission for the Big Ten Conference and the university to use their name and image (while the players cannot benefit off their images or give media interviews) among others. The players spend up to 60 hours per week on football-related activities during training weeks, 40-50 hours per week during the regular season, and 12-25 hours per week during the off-season.
The NLRB also concluded that the relationship between the players and the university is primarily centered around football – players are chosen for scholarships based on football abilities, not academics; coaches discourage classes that are too demanding or that otherwise interfere with football; players request re-scheduling or tests that interfere with games and such requests are normally granted; scholarships are revocable on the basis of football performance; players spend more time per week on football than academics; and football is not a core activity of their academics.
Although this case asked whether football players are “employees” for the purpose of unionizing, the factors are quite similar to those that courts analyzing in determining whether individuals are “employees” for the purpose of wage and hour laws. It will be extremely interesting to see whether any misclassification lawsuits arise on behalf of football players, as they have on behalf of other student workers.
Research Assistants and other On-Campus Workers
Student workers have sued universities based on their purported status as employees in the context of both discrimination and wage and hour disputes. In Al-Maqablh v. Univ. of Cincinnati College of Medicine, 11-cv-531 (S.D. Ohio 2013)) a student who was suing over discrimination was not found to be an employee since his relationship with the university was primarily an academic one, and his claims were focused on his academic standing, not work he performed as a laboratory assistant. Contrast with Summa v. Hofstra University, 07-cv-3307 (S.D.N.Y. 2010), where students held myriad positions around campus including football managers, research assistants and safety representatives, worked for forty or more hours per week and were paid a stipend of about $700.00 per semester. The Court did not rule on their status as employees but stated in the order granting conditional certification of a collective action that their jobs did not seem to be closely related to their status of students. This case settled in 2011 for almost $500,000.00
Cheerleaders who work for the Cincinnati Bengals and Oakland Raiders are alleging that they are misclassified and underpaid. Leaked memos and handbooks show that the teams exercise extensive control over cheerleaders, their physiques, their make-up choices, their appearances at outside events, even what types of undergarments they could wear. Cheerleaders can be fined or benched for failing to live up to any of these strict rules. Work time includes mandatory practice sessions, games, and mandatory charitable/promotional appearances. Although these cheerleaders work for professional teams, it is reasonable to suspect that student cheerleaders for university teams may share the same concerns. For workers such as as cheerleaders whose duties relate to sports, the FLSA contains an exemption for amusement or recreational establishments that meet certain seasonal and revenue-based guidelines. Whether cheerleaders would be found exempt under this provision is unclear, although the Department of Labor has stated that the seasonal recreational exemption excludes the Raiders cheerleaders from minimum wage and overtime laws. However, like the Northwestern football players, the work season of cheerleaders extends beyond the team’s playing season, beginning with tryouts and practices before the football season begins.
And as previously discussed, more and more interns are suing their employers, alleging that the internships are less about education than about providing labor that companies would otherwise have to pay for. As the Supreme Court and the US Department of Labor have stated, companies should not receive immediate benefits from interns. To the contrary, taking into consideration the amount of supervision and the learning that interns are supposed to receive, internships may well be short-term drains on a company.
More Litigation to Come?
As we can see from examining these other debated categories of student workers, the basic questions that a court would ask in determining whether football players are employees are the same that the NLRB analyzed: what is the relationship between the student and the university? Is it focused on academics or the extra-curricular activity? Is the activity part of the student’s academic experience? The trend of student workers suing their universities as employers is going to continue to grow as more and more students reject the notion that they do not deserve employee protections based on their age and relative lack of job experience.