Last week, the General Counsel of the National Labor Relations Board filed a complaint against the NCAA, the Pac-12 Conference, and the University of Southern California. The complaint alleged that the defendants misclassified certain football and basketball players as students. It said the players were not, in fact, students, as they’re usually considered, but employees. And that means they had a statutory right to form and join unions.
Predictably, the complaint is drawing a lot of attention. Reclassifying the players would transform college athletics, and college athletics are big business. But there’s more to the story. The complaint also sets out a novel legal theory, arguing that misclassification is itself an “unfair labor practice.” That is, it claims that the defendants violated the law merely by saying that the players were students.
That theory is, to put it mildly, controversial. It has been rejected at least once before, albeit under a different administration. If it sticks this time, it could disrupt the way thousands of businesses classify their workers. It could also chill independent contracting, contradict federal law, and infringe First Amendment rights.
To understand the debate, we have to go back to the early days of federal labor law. The National Labor Relations Act was passed in the mid-1930s. At the time, section 8(1) said employers could not interfere with or restrain protected activity, including union-related activity. The Board quickly applied...
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