Punching In: Dartmouth College Players’ Union Election Nears

Monday morning musings for workplace watchers.

Dartmouth Union Election|Measuring the Gig Economy

Parker Purifoy: Dartmouth College is asking the National Labor Relations Board to delay a unionization election among the men’s basketball team while it challenges the athletes’ employee status.

The college filed a motion Feb. 29 to stay the election currently scheduled for Tuesday, and asked to expedite its appeal of a decision from an NLRB regional director that ruled the basketball players were employees under federal labor law.

If the election is allowed to proceed, the Dartmouth players will be the first collegiate athletes ever to have their votes counted in a representation election.

NLRB Regional Director Laura Sacks held last month that Dartmouth provides compensation to the players and exerts enough control over them to consider them workers under federal labor law. The ruling and the election come amid mounting employment and antitrust litigation against the National Collegiate Athletics Association over the treatment of student athletes.

The NLRB also is currently litigating an unfair labor practice case against the NCAA, the University of Southern California, and the Pac-12 Conference over charges that the three entities are improperly misclassifying the university’s basketball and football players as students rather than employees.

Dartmouth’s latest motion is the first from the institution’s newly beefed-up legal team, which now includes Adam Abrahms, Nicole Buffalano, and Philip Miscimarra of Morgan, Lewis & Bockius. Abrahms and Buffalano are also representing USC in its ULP proceedings. Miscimarra served as NLRB chairman during part of the Trump administration.

The motion accuses Sacks of ignoring established precedent and misapplying the definition of employees to the basketball players, arguing that the election must be put off or that the ballots must be impounded while their appeal is pending before the board.

“Permitting an election to go forward would not advance the purposes of the act, with ballots being cast by uncompensated students who have never been considered employees by the board or any court and where a significant percentage of eligible voters would undisputedly not have any interest in the election by the time the novel and significant issues presented here are fully adjudicated,” Dartmouth said.

The NLRB previously declined to assert jurisdiction over football players at Northwestern University in 2014, denying them a representation election. But Sacks said in her decision that this ruling didn’t preclude the board from reconsidering the issue.

The vote is scheduled to be held on Dartmouth’s campus in Hanover, N.H., and the ballots are set to be counted the same day.

If the NLRB upholds Sacks’ decision, the college will have to intentionally refuse to bargain with the union and go through unfair labor practice proceedings to get direct court review of the players’ employment status.

Dartmouth Big Green gather for a team talk during their game against Columbia Lions in their NCAA men’s basketball game on Feb. 16, 2024, in New York City.

Photo by Adam Gray/Getty Images

Rebecca Rainey: A top House Republican and a coalition of businesses are pressing the Bureau of Labor Statistics to get the public more involved in its latest efforts to size up the contingent workforce, a segment of the economy that has drawn significant regulatory scrutiny in the past decade.

The Coalition for Workforce Innovation, whose members include app-based companies Uber Technologies Inc. and Lyft Inc., as well as the Associated Builders and Contractors and the American Trucking Associations, penned a letter to BLS leadership, suggesting the agency should issue a request for information and hold public meetings to ensure its future surveys of the gig workforce are accurate and comprehensive.

“Public policy that stands on a bedrock of inaccurate statistics and information regarding the independent contractor workforce violates the basic rules of administrative procedure that require a rational connection between those statistics and facts and the policy choices made,” the group wrote in a Jan. 16 letter to William Wiatrowski, acting commissioner of the BLS.

The BLS responded to CWI last week that it is “committed to providing high-quality data about our nation’s workforce,” noting that the Office of Management and Budget requires BLS “to seek clearance of all its survey processes including issuing Federal Register Notices asking for public comment.”

The concerns from the business group come as the BLS is working to implement recommendations issued by the non-partisan Government Accountability Office last year, which charged the US Labor Department subagency with establishing a mechanism to collect labor force data from multiple agencies. Data on this subset of the economy are fragmented and have yielded varying results, the GAO said in a December report.

The BLS tried to measure the number of workers in nontraditional working arrangements in 2017, but the survey questions only captured workers’ main jobs, and not occasional side-gigs, resulting in false positives.

House Education and the Workforce Committee Chairwoman Virginia Foxx (R-N.C.) said she’s concerned the BLS “will make the same mistakes again.”

“DOL must seek input from stakeholders on how to measure the size and characteristics of the independent contractor workforce accurately to avoid writing another error-plagued report and making disastrous policy,” Foxx said in a statement.

Specifically, the CWI has asked that the BLS use a “universal, objective definition” when trying to assess the number of independent contractors in the economy, and allow stakeholders to submit their own existing data to help inform the survey it uses.

Heidi Shierholz, president of the Economic Policy Institute, noted that external data could be helpful to flag unusual phenomenon occurring among contractors in the labor force or inform the BLS of how to structure survey questions they may not have asked otherwise.

“There’s clearly legislation, regulation around the issue of independent contracting,” Shierholz, who served as the chief economist at the DOL under Obama, said. “So really understanding the scope, and the nature of that kind of work just makes that kind of policy smarter.”

Looming over the BLS effort is a new DOL rule updating the agency’s approach to determining whether a worker should be classified as an independent contractor or employee.

Both the CWI and Foxx are opposed to the rule—which would generally make it harder for employers to use independent contractors—and say the DOL shouldn’t be regulating on the issue without better data on the number of contractors working. The rule is set to go into effect on March 11.

“It takes a lot of nerve for DOL bureaucrats to attempt to regulate without an accurate understanding of the workforce,” Foxx said.

READ MORE:

• Punching In: Labor Agency Leading Effort to Measure Gig Economy
•  Labor Department Moves To Change Worker Classification Rule
• Workers Divide On Contractor Status, Complicating Biden Approach

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