NLRB General Counsel Abruzzo Issues Memo on Employee Status of Players at Academic Institutions

September 29, 2021

By Peter A. Jones and Richard J. Evrard

The General Counsel for the National Labor Relations Board (NLRB or Board), who has authority for setting prosecutorial policy for the NLRB, issued a General Counsel Memorandum (GC Memo) today, reversing the prior Board General Counsel’s position and asserting the employee status of certain student athletes at private educational institutions. Board General Counsel Jennifer Abruzzo conveyed her enforcement position in a memorandum to the Board’s Regional Directors. Because non-unionized employees have rights under the federal labor law, the immediate impact will be that the NLRB’s enforcement arm will be processing complaints related to allegations of adverse treatment of certain student athletes for all variety of internal complaints against private institutions.

Read More >> <p>NLRB General Counsel Abruzzo Issues Memo on Employee Status of Players at Academic Institutions</p>

NCAA Student-Athlete Name, Image and Likeness

July 29, 2021

By Kyle D. Ritchie and Richard J. Evrard

One month has passed since the NCAA Board of Directors adopted emergency legislation permitting student-athletes to monetize their name, image and likeness (NIL) without violating the long-standing amateurism requirements of NCAA Bylaw 12. Specifically, the NCAA: (1) acknowledged that a state law/executive order regarding NIL supersedes NCAA rules; and (2) provided blanket NIL coverage to student-athletes located in states that do not have a state law/executive order in place. This major change in NCAA legislation is charting new pathways for how student-athletes must be monitored by their institutions to avoid ineligibility. The creation of an internal institutional policy is one way to help organize and manage this new process.

Read More >> <p>NCAA Student-Athlete Name, Image and Likeness</p>

New Guidance from IRS on Treatment of CARES Act Payments to Students

December 17, 2020

By Jane M. Sovern, Gail M. Norris, and Philip J. Zaccheo

On Dec. 14, 2020, the IRS added guidance to its FAQs on the Higher Education Emergency Relief Fund and Emergency Financial Aid Grants under the CARES Act, clarifying that higher education institutions are not required to report these emergency financial aid grants to students on Form 1098-T. 

Read More >> <p>New Guidance from IRS on Treatment of CARES Act Payments to Students</p>

Treatment of Student Workers Under the COVID-19 Emergency Family Medical Leave Expansion Act and the Emergency Paid Sick Leave Act

April 2, 2020

By Hannah K. Redmond, Gail M. Norris, and Jane M. Sovern

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act, which enacted the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. These Acts make new categories of leave available to eligible employees of covered public employers as well as private employers with fewer than 500 employees. This 500-employee threshold has left many higher education institutions wondering whether their student workers may be counted as employees and whether their students are entitled to leave.

Read More >> <p>Treatment of Student Workers Under the COVID-19 Emergency Family Medical Leave Expansion Act and the Emergency Paid Sick Leave Act</p>

STEM OPT Site Visits – Why ICE Is Knocking On Your Door Now - Higher Education Law Report

October 11, 2019

By Joanna L. Silver

U.S. Immigration and Customs Enforcement’s (“ICE”) latest compliance activity involves site visits of those employers who employ F-1 nonimmigrant students under STEM Optional Practical Training (“STEM OPT”) work authorization.  With STEM OPT, F-1 students who have earned STEM (e.g., science, technology, engineering and mathematics) degrees from U.S. institutions of higher education can apply for and obtain an additional 24 months of OPT work authorization in addition to the 1 year of post-graduation OPT granted to all eligible F-1 students.  

Read More >> <p>STEM OPT Site Visits &ndash; Why ICE Is Knocking On Your Door Now - Higher Education Law Report</p>

Race-Conscious Admissions and the Race to the Supreme Court - Higher Education Law Report

October 2, 2019

By Monica C. Barrett and Sarah A. Luke

In what is likely only the first step in a trek to the U.S. Supreme Court, on September 30, 2019, Harvard College defeated a challenge to its admissions policy brought in the federal District Court in Massachusetts on behalf of Asian-American applicants.  In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Civil Action No. 14-cv-14176-ADB, U.S. District Court Judge Allison D. Burroughs found that Harvard’s admissions policies did not violate Title VI of the Civil Rights Act or the strict scrutiny standard of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.  We will summarize the lengthy court decision in this comparatively short piece.  The decision itself outlines extensive factual findings based on written submissions and the testimony from eighteen current and former Harvard employees, four expert witnesses, and eight current or former Harvard college students. 

Read More >> <p>Race-Conscious Admissions and the Race to the Supreme Court - Higher Education Law Report</p>

Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing - Higher Education Law Report

September 24, 2019

By Robert F. Manfredo

On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA).  Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.

Read More >> <p>Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing - Higher Education Law Report</p>

Harvard and OCR Enter into a Resolution Agreement – More Guidance for the Rest of Us

January 6, 2015

By John Gaal

compliance-image-300x234 In the closing weeks of 2014, OCR announced its findings with respect to Harvard Law School’s Title IX compliance, as well as a resolution agreement which subjects the Law School, and the University, to monitoring for at least the next three years.  As just one indication of how complicated it has become to comply with the government’s view of Title IX, in July of 2014 the University, as a whole, issued a new Title IX policy and procedures, which, despite this institution’s unmatched resources and compliance efforts, OCR still noted in its Law School findings were deficient in some respects. Highlighted below are the main areas (of more general application to other institutions) in which OCR either found the institution’s policy and procedures in need of revision or otherwise required it to undertake action.  While this list does not provide an exhaustive checklist, by any means, of all the items that must be in policies and procedures in order to be compliant, it does provide a useful checklist of some of the “detail” OCR expects to find in those policies and procedures.  Specifically OCR required:

  • An explicit statement that:
    •  the institution has an “obligation” to address incidents of sexual harassment (which includes assault) that “it knows or should know about, even when a complaint or report is not filed,” and to respond to all complaints and reports of incidents it “knows or should know about”;
    • complainants have a right to proceed simultaneously with a criminal investigation and a Title IX investigation and that the University may defer its investigation for only a limited time for law enforcement fact gathering and then will promptly resume its investigation;
    • “mediation” (which OCR seems to view as but one type of informal resolution) will not be used in sexual assault and sexual violence cases, and students who report (the broader category of) sexual harassment will not be required to resolve the problem directly with the alleged harasser;
    • the institution will “take steps to prevent recurrence of harassment and to correct its discriminatory effects on the complainant and others”;
    • written notice will be provided to both parties about the outcome of any investigation and/or disciplinary proceeding and “as permitted” the written notice will be provided to the complainant about “the sanction imposed on a student who was found to have engaged in harassment when the sanction directly relates to the harassed student”;
  • Clear language that the University has an “obligation to consider the effects of off-campus conduct when evaluating whether there is a hostile environment in a University program or activity”;
  • That the institution maintain (but it doesn’t say for how long) “records of each informal and formal complaint, including individuals involved, investigative steps taken, documentation received, individuals interviewed, decisions reached, and reason(s) for the decision(s) reached”;
  • Language that makes clear that in the event informal procedures are available, “a party” may end informal proceedings at any time and move to a formal process (given OCR’s general view that both parties are to be treated throughout in an equivalent fashion, one might interpret this reference to “party” to mean either complainant or respondent, but that is not clear);
  • The designation of reasonable prompt timeframes for each major stage of the proceedings, including a description of factors that may extend the timeframes (such as complexity of the investigation and/or severity and extent of the alleged conduct);
  • The email address for each designated Title IX Coordinator;
  • That the institution inform the parties at regular intervals of the status of the proceeding; and
  • An explicit prohibition of public hearings in cases involving sexual assault or violence.

The findings letter also repeats the need for Title IX policies to address complaints brought against third party, non-campus respondents, as well as the institution’s need to check with complainants to ensure interim measures are effective and, if not, to identify alternatives. In what has become standard fare, OCR is also requiring a climate survey (the contents of which has to be approved by OCR) for each of the three years covered by the monitoring period. Finally, the resolution agreement covers training, giving express approval to in person or on line training.  For staff responsible for recognizing and reporting violations of the policy, and those involved in processing, investigating, resolving and or/reviewing complaints or other coordination of Title IX compliance, training at a minimum must include how to handle complaints or other reports of sexual harassment, sexual assault and sexual violence; the institution’s grievance procedures; and confidentiality requirements.  For all administrators, faculty, residential staff and others who interact with students on a regular basis, training must provide attendees with essential guidance and instruction on recognizing, appropriately addressing and reporting allegations and complaints (including the difference between sex discrimination, sexual harassment, sexual assault, and sexual violence), the institution’s responsibilities under Title IX to address allegations, including the availability of interim steps, and confidentiality.  New employees are to be trained within 90 days of hire. Institutions are well advised to review their policies and procedures to make sure these issues are covered.

Confidentiality and Title IX

May 19, 2014

By John Gaal

doe-logoIn OCR’s April 2011 Dear Colleague Letter, OCR referenced a covered institution’s obligations in the face of knowledge of sexual harassment/misconduct and a victim’s request for confidentiality and/or that the institution not act on the report, but did not provide particularly helpful guidance on how an institution is to balance those competing concerns.  Its recent Questions and Answers on Title IX and Sexual Violence (“Q&A”) provide a little more help. Title IX requires that an institution with notice of sexual harassment/misconduct act to end and remedy that harassment/misconduct.  Notwithstanding this obligation, OCR has made clear that it “strongly supports” a student’s interest in confidentiality and, while it recognizes that there may be instances where an institution must deny a student’s request for confidentiality in order to meet its Title IX obligations, it has now characterized those instances as “limited,” noting that even then information should only be shared with those individuals responsible for handling the institution’s response to the situation. OCR’s Q&A confirms that when confronted with a student request for confidentiality, the institution must inform the student that honoring that request may impair the institution’s ability to fully investigate and respond to the incident (including disciplining or taking other action against a perpetrator).  As part of that discussion, the institution needs to explain to the student Title IX’s prohibition against retaliation, that it will take steps to prevent retaliation, and that it will take “strong responsive action” if retaliation occurs. If a student still insists upon confidentiality, the institution is required to balance that request against its obligation to provide a safe and nondiscriminatory environment for all students, including the reporting student.  While not required, OCR believes that this is a determination best made by the Title IX coordinator.  The Q&A lists a number of factors to be considered in making this determination:

  • Have there been other complaints of sexual harassment/misconduct against the alleged perpetrator?
  • Does the alleged perpetrator have a history of arrests or records from a prior school indicating a history of harassment/misconduct?
  • Has the alleged perpetrator threatened further sexual harassment/misconduct against the complainant, or others?
  • Was the harassment/misconduct perpetrated by multiple individuals?
  • Does the report of harassment/misconduct reveal a pattern of perpetration (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group)?
  • Was a weapon involved?
  • Are there other means of obtaining relevant information?

If an institution determines that it cannot provide confidentiality, it should inform the student prior to making any disclosure.  In addition, the institution needs to consider interim measures necessary to protect the student and ensure the safety of other students.  If the reporting individual requests the institution to inform the alleged perpetrator that he or she had asked the school not to investigate or seek discipline, the institution should honor that request and inform the alleged perpetrator that the decision to proceed is an institutional decision. In situations where an institution determines that it can honor a request for confidentiality, the institution is not relieved of its duty to act.  There may be any number of steps an institution may take, and may have to take, without identifying the reporting individual or commencing disciplinary proceedings.  For example, the Q&A specifically references increased monitoring, supervision or security at locations or activities where the misconduct occurred; providing training and educational materials for students and staff; changing or publicizing the institution’s policies on harassment/misconduct; and conducting climate surveys on harassment/misconduct. Where many students are involved, an alleged perpetrator may be put on notice of the allegations and counseled appropriately, without revealing the identity of any reporting student. Finally, even where confidentiality is provided, institutions must take other steps (beyond confidentiality) necessary to protect the reporting individual, including providing support services and/or changing living arrangements, course schedules, assignments or tests. Certainly, OCR’s recent Q&A provides clearer insight into OCR’s view of requests for confidentiality (which are usually actually requests that the institution “not do anything”).  However, institutions should understand that even this amount of guidance does not answer all of the vexing questions, or insulate an institution from all possible liability, in the face of a request for confidentiality.  Unfortunately,   hindsight is 20/20.  If an institution honors a request to not proceed with disciplinary action, and if the perpetrator offends again, it may very well be that OCR (or, even worse, a jury) may conclude that the institution made the wrong call.  Conversely, if an institution pursues a perpetrator over a victim’s objections, and if the victim suffers extreme distress as a result, the institution may be found at fault for that situation. In sum, while OCR’s guidance is helpful, the landscape remains a dimly lit path fraught with “damned if you do; damned if you don’t” eventualities.  Institutions will need to proceed with caution and with a full view of the consequences of any decision.  It pays to recall that, while OCR’s view is a major consideration, it is not the only consideration or source of potential liability or backlash.  Unfortunately, real life situations rarely reduce to simple decisions.

Responsible Employees and Title IX

May 11, 2014

By John Gaal

university-arch-300x200Under Title IX, the concept of “responsible employee” has a great deal of significance, as recently reaffirmed by OCR in its Questions and Answers on Title IX and Sexual Violence (Q&A), and previously reported in this blog. OCR deems an institution to have notice of student-on-student sexual harassment and/or misconduct if a “responsible employee” knew, or in the exercise of reasonable care should have known, that harassment/misconduct occurred.  And, of course, it is that knowledge that triggers an institution’s obligation to take appropriate steps to investigate and, as appropriate, end and remedy that harassment/misconduct.  Responsible employees also have the initial obligation to report incidents of sexual harassment/misconduct to the Title IX coordinator (or other appropriate designee). So who is a “responsible employee” in the eyes of OCR?  While OCR’s Q&A may provide some clarification of this very significant issue, it continues to leave a number of unanswered questions for colleges and universities. At one place in its Q&A, OCR provides that a responsible employee is any employee:

(a)  who has the authority to take action to redress sexual harassment/misconduct;

(b)  who has been given the duty of reporting incidents of sexual harassment/misconduct or any other misconduct by students to the Title IX coordinator or other appropriate designee; or

(c)  who a student reasonably believes has this authority or duty.

(The standard provided in the Q&A actually refers to “sexual violence,” not sexual harassment/misconduct, but in a note OCR makes it clear that the same standards apply to sexual violence and “other forms of sexual harassment,” which would include sexual assault.  We use the broader reference to sexual harassment/misconduct for this discussion.)  This first prong of this definition seems clear, and since institutions in the first instance have the ability to determine who they give the authority to take action to redress sexual harassment/misconduct, this prong seemingly provides an institution with some latitude to self-determine who is a responsible employee and therefore whose notice of an incident triggers the institution’s obligation to act. There is less clarity around the second prong of the definition.  On its face, the Q&A provides that a responsible person is someone “given the duty of reporting…to the Title IX coordinator.”  This reference – “reporting … to the Title IX coordinator” – is pretty precise and could be read as suggesting that someone whose duty is to report misconduct, but not to the Title IX coordinator, is not a responsible employee.  Later in the Q&A, however, there is a lengthy discussion regarding RAs (Resident Assistants/Advisors). In that discussion, OCR seems to say that an individual who has a duty to report misconduct of any kind that violates school policy (e.g., drug and alcohol violations, etc.), regardless of to whom they are obligated to report it (the Title IX coordinator or someone else), is a responsible employee. The Q&A also fails to define the “employee” part of the term “responsible employee.”  Is a student, who receives free room and board in exchange for “monitoring” a floor in a dormitory really an “employee” at all (for example, for Fair Labor Standards Act purposes, that student may not be considered an “employee” despite their assignments)?  Leaving aside the question of whether someone is “responsible” (discussed above), OCR’s latest guidance does not tell institutions who are “employees” for this purpose. And does OCR really mean that any employee who has any “misconduct” reporting duty is a “responsible employee”?  The above referenced definition provides that someone who has been given the duty of reporting incidents of sexual violence “or any other misconduct by students” is a responsible employee.  Generally speaking, faculty at most institutions are likely to have an obligation to report plagiarism and cheating.  Leaving aside for a minute the third prong of the definition – someone who a student could reasonably believe has the authority or duty to act – does this mean that all faculty are actually responsible employees, merely because they report cheaters? We simply do not know.  Presumably, OCR intended that an employee with broad based misconduct reporting responsibilities be viewed as a responsible employee, regardless of whether they are charged with reporting directly to the Title IX coordinator or not, but just how far this definition goes remains unclear. The third prong of the definition also raises some unanswered questions.  In the first instance, the third prong suggests that when someone might only “appear” to have the requisite duty or authority to act, but really does not, an institution can protect against that person being a responsible employee by clearly indicating that he or she is indeed not a responsible employee.  For example, assuming faculty at a particular institution do not have any institutionally-assigned duty to report any kind of student misconduct and/or authority to redress sexual harassment/misconduct, and therefore do not fall within the first two prongs of the definition, it might nonetheless be reasonable for a student to believe that they do, thereby making them responsible employees under the third prong.  If institutional policy clearly and visibly provides that faculty are not responsible employees, it would seem that a reasonable basis to believe that they are would no longer exist, the result being that a faculty member’s awareness of sexual harassment/misconduct would not necessarily constitute institutional knowledge and trigger any obligation to act.   Of course, institutions must determine whether they are better off attempting to exclude faculty (or any other group) from the category of responsible employee (in an attempt to avoid potential liability in the event a faculty member fails to act), or clearly including them in that category (to ensure the strongest likelihood of rooting out harassment and misconduct). What about an individual who falls squarely within the first two prongs of the definition?  Can an institution effectively remove them from the responsible employees category, simply by saying so?  There certainly are parts of the Q&A that suggest that the answer is yes.  For example, the Q&A advocates for institutions to designate individuals (beyond professional and pastoral counselors) on campus as “confidential” resources for victims, which would take them out of the responsible employee category (provided the institution provides clear notice of that fact).  In fact, the Q&A specifically contemplates that possibility for an RA, despite other misconduct reporting obligations which would seemingly place them within the second prong of the definition. But just how much latitude might an institution have in this regard?  Can it carve out of the responsible employee category all employees who otherwise have a duty to report a wide range of other types of student misconduct?  Can it effectively whittle down the category of responsible employees to just one or two specifically identified persons on campus – in an effort to limit its “knowledge” of assaults and therefore its obligation to act?  It is hard to believe that OCR would want an institution to have that much latitude, but there are mixed messages from the Q&A as to just what is permitted and what is not. Once it is finally determined who is a responsible employee, and that person becomes aware of sexual harassment/misconduct, the institution is responsible for ensuring that he or she reports to the Title IX coordinator (or other appropriate person) all relevant details about the alleged harassment/misconduct that have been provided.  This includes the names of the alleged perpetrator (if known), the student who experienced the alleged harassment/misconduct, other students involved in the incident, as well as relevant facts such as date, time, and location. In addition, colleges and universities are required by OCR to make clear (or as clear as they can, given the ambiguities in the Q&A) to all employees and students which staff members are responsible employees, both so students can make informed decisions about in whom to confide and so employees can understand their reporting obligations. Finally, this newest OCR guidance states that an institution needs to instruct responsible employees that, when talking to a student who might reveal information which he or she may wish to keep confidential, the responsible employee must in effect “Mirandize” the student before that information is revealed.  That is, the responsible employee needs to (1) warn the student of the employee’s obligation to report any information the student reveals to the Title IX coordinator, (2) explain to the student his or her option to ask that the institution nonetheless consider maintaining the confidentiality of that information, but that the institution may not be able to guarantee confidentiality (more about this in a future post), and (3) advise the student of the ability to instead share this information with counseling, advocacy, health, mental health or other sexual assault-related resources who are not obligated to report it to the Title IX coordinator. Clearly, a basic task for every institution is to make a reasoned determination concerning who it considers id a responsible employee (and who it does not) and to make that determination well known.  Then, it is incumbent on the institution to make sure that responsible employees fully understand – and comply with – their obligations. No doubt the intent of OCR’s Q&A was to provide clarifying and useful guidance to institutions.  Regrettably, as has often been the case with OCR guidance in this area, the Q&A leaves a number of unanswered questions.