iStock_000015026880XSmall.jpgBack in August, the National Labor Relations Board threw the higher education community a curve ball ruling that student assistants at Columbia University were employees under the National Labor Relations Act, and were therefore entitled to organize a union. (For more information see our alert on the case.) An obvious question left unanswered by the Columbia University case was whether and under what circumstances students may also be entitled to minimum wage and overtime under the Fair Labor Standards Act. On Monday, December 5, the Seventh Circuit Court of Appeals weighed in on at least part of that issue, holding that two former University of Pennsylvania athletes were not employees of either the University or the NCAA under the FLSA. Berger v. National Collegiate Athletic Association, et al.

Historical Context

The FLSA itself is distinctly unhelpful in assessing when students might be treated as employees, as it defines “employee” as “any individual employed by an employer,” and “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” The statute goes on to define “employ” as “to suffer or permit to work.”

Taken literally, that exceedingly broad definition would seem to sweep in all students who perform anything one could describe as “work.” That could include, for example, students who build sets in the drama department, run the student radio station, or do research work as part of a graduate program. However, the U.S. Supreme Court long ago rejected such a sweeping interpretation of the FLSA, holding in Walling v. Portland Terminal Cothat the FLSA “cannot be interpreted so as to make a person whose work serves only his own interest an employee of another person who gives him aid and instruction.”  
Continue Reading Seventh Circuit Says Student Athletes Are Not Employees

Coach holding footballAs schools seek to adjust to the new Department of Labor overtime exemption rules and increased salary standards, nearly every institution has classification and overtime-calculation questions about athletic coaches and athletic trainer positions.  The NCAA (in conjunction with CUPA-HR) has now issued a helpful paper addressing exemption analysis and practical considerations applicable to these roles that can be found here.  The analysis identifies several options for potentially classifying coaches and athletic trainers as exempt from overtime, which hinge fundamentally on defining each individual’s “primary duty.”  That can be tricky, particularly for assistant coaches, given that (1) federal law defines primary duties as the “most important” (which may or may not be those that consume the most time) and (2) coaches are commonly assigned a wide variety of tasks and roles, depending on particular team needs, size of institution, or head coach preferences.  Definitive decisions about classification will thus continue to require case-by-case analysis of each coach’s particular situation, but the NCAA’s paper provides several helpful concepts to help frame such decisions.

Highlights of the exemption analysis include:
Continue Reading Coaches and Athletic Trainers Under the New FLSA Rules