Patrick Fanelli
ABOUT THE AUTHOR

Patrick Fanelli

Mr. Fanelli is a founding partner of Fanelli Willett Law Offices, one of Blair County's newest law firms. Patrick focuses his practice on helping public and private employers navigate the increasingly regulated landscape of labor and employment law, while also serving as a respected school lawyer on behalf of various Pennsylvania school districts and other public entities, which turn to him for assistance in the collective bargaining process or as a general solicitor. Read More about Attorney Fanelli

NLRB Punts, Dismisses Northwestern Football Players’ Union Effort

More than a year ago, a group of Northwestern University football players took the unprecedented step of filing a Petition to form a union, and until today there still was no answer to the legal question of whether or not they could. Northwestern had argued that the players were not “employees” as that term is defined by the National Labor Relations Act, which is the law that gives private sector employees the right to form, join and assist labor unions.

In March, the NLRB Regional Director ruled that they in fact were employees, and he ordered an election among the team members. Those ballots from that election, held this spring, have been sealed while the University appealed the determination that the students were in fact employees.

The full NLRB unanimously ended the matter today, though, but not by answering the question of whether the students are employees. Instead, to borrow a football concept, they punted. The Board dismissed the Petition by concluding that the NLRB had no jurisdiction over this Petition.

The statute does not give the NLRB any jurisdiction over public employers, including public (and state-related) universities. According to the NLRB, 108 of the nation’s roughly 125 Football Bowl Subdivision colleges and universities are public and therefore outside the NLRB’s jurisdiction, and in fact all other schools in the Big Ten are state affiliated schools.

The NLRB noted that many of the matters that likely would be the subject of collective bargaining are also the subject of NCAA and conference policies, and the NLRB would not have jurisdiction over those policies as applied to the vast majority of other schools. The difficulty that could come, then, from the NLRB exercising jurisdiction over issues that also are governed by NCAA and conference policy, without any jurisdiction over the overwhelming majority of schools with which Northwestern finds itself aligned, would not promote the kind of stability in labor relations that the law and the NLRB are designed to promote.

By dismissing the case due to a lack of jurisdiction, the NLRB did not answer the question of whether or not student athletes are employees under the National Labor Relations Act, so that question remains for another day. Still, this represents a significant victory for Northwestern.

clock - overtime rules

US Department of Labor Proposes New Regulations to Expand Overtime

Earlier this month, the United States Department of Labor published proposed regulations to expand the class of employees entitled to overtime compensation under the Fair Labor Standards Act.

The Act generally requires that employees be paid premium overtime compensation for all hours worked in excess of 40 in a workweek, but the law also contains exceptions for certain types of employees. Specifically, the regulations provide that an employer need not pay any overtime compensation if all three of the following elements are present:

  1. the employee is paid on a salaried basis (i.e. is paid the same amount each week regardless of the quality or quantity of work),
  2. the salary exceeds $455 per week ($23,660 annually), and
  3. the employee’s work duties fall into certain enumerated categories involving administrative, executive or professional duties.

The most notable change in the newly proposed rule would increase that $455 threshold, which has not been adjusted in more than a decade. In addition, instead of establishing a specific amount, the proposed regulations would provide for an annual adjustment to this threshold. The amount would be set at the 40th percentile of weekly earnings for full time salaried workers. Based on 2013 data for all full time salaried workers, this threshold would be $921 per week (or $47,892 annually), and the Department of Labor projects that in 2016, when the regulations likely would take effect, the amount would be approximately $970 per week ($50,440 annually).

As you can see, this change, to more than double the threshold amount, will increase greatly the number of employees eligible to paid on an overtime basis. The Department is seeking comments on the proposed rule, and we will monitor the status of the proposal. Stay tuned for updates.

Is More Collective Bargaining Transparency Wise? – Part 2

Recently, I wrote about Pennsylvania Senate Bill 645, which would create the “Public Employer Collective Bargaining Transparency Act.” The bill would require that collective bargaining agreements be made public in advance of their adoption, and I had suggested that although the intentions might be noble the law actually might be counterproductive.

I also mentioned that the bill had one other goal. This second new requirement would be to make clear that certain records relating to bargaining would be subject to disclosure under the Right to Know Law. Specifically, the law would clarify that the draft collective bargaining agreement is subject to disclosure once it is advertised as being ready for adoption. More troubling, though, is the requirement that the public employer would need to disclose “any documents that are presented by a public employer or received by a public employer from an employee organization, in the course of collective bargaining.”

Once again, though, this could create more problems than it solves. Bargaining sometimes requires candid and private communication, and that type of communication can be stifled when one party or another hesitates based on the fear that that their work product would or could be viewed later by parties for whom it was not intended.

The bill’s goal – creating accountability to collective bargaining – is noble. At the end of the day, though, local elected officials ARE accountable for the decisions they make with respect to collective bargaining agreements, just as with any other decisions they make involving public money and public trust. If the public disapproves of the way elected officials are handling bargaining, they can replace them with new elected officials.

At the state level, of course, the process is different. State contracts are negotiated by the Governor, the executive, rather that by the legislature. At least one proponent of the bill, the Commonwealth Foundation, correctly notes that the bill would would allow legislative input and oversight that currently is lacking at the state level. A better solution, though, would be to require legislative input by, for example, requiring a legislative ratification of state collective bargaining agreements.

At this point, the bill is still in committee in the state House, but we will keep an eye on it to see what, if any, changes public employers can expect.

Bill Aims to Bring More Transparency to Public Collective Bargaining – But is it Wise?

A series of bills introduced in the Pennsylvania House and Senate this session would bring more transparency to the process of public sector bargaining. Whether this would be a benefit for the taxpayers, as suggested by the bills’ proponents, though, remains to be seen.

Last month Senate Bill 645 passed the Senate and was referred to the House, where the bill sits in the State Government Committee. This bill, known as the “Public Employer Collective Bargaining Transparency Act” would require that all public employers provide public notice of any proposed collective bargaining agreements in advance of, and for thirty days after, the signing of any agreement. Absent the public notice, the agreement would be void.

Currently, Pennsylvania’s Sunshine Law permits public employers to conduct bargaining in executive session, and most bargaining sessions in fact do occur in private. Often, and in fact by design, many times the agreements that result from the bargaining are not made known until after the employer and the employees’ union both approve the deal.

The bill would require the public notice presumably so that the public would be able to offer input into the agreement before it is already approved. Sponsors and supporters of the bill also have complained that the state legislature, which must fund these agreements with the state’s various unions, does not know what will be in those agreements and has no input into the terms that it will be obligated to try to fund.

While the argument has more merit with respect to state union contracts, since the legislature has no advanced input either, the proposed rule might be counterproductive at a local level, where the same problem does not exist. I wrote above that if often is by design that the details of an agreement are kept quiet until the agreement can be approved by the union membership and the governing body of the local government. This is intended to limit the extent to which the union members and supporters can place pressure on the governing body in an effort to influence the governing body’s vote on the agreement. In that sense, providing advanced public notice of a proposed agreement is likely to aid the union more so than the taxpayers.

If the stated goal of the bill is to provide more transparency in an attempt to limit union influence, the means employed to achieve that goal is not well suited to the goal, at least at the local level.

In a future post, I will address the bill’s second major requirement, which likewise may be counterproductive as well. In the meantime, I will continue to watch the progress of this bill and the others like it.

[EDIT: Read Part 2 here]

Could Teacher Layoffs Be Based on Performance Rather Than Seniority?

If some Pennsylvania state lawmakers have their way, teacher layoffs soon can be based on performance rather than just seniority. Although the idea is not new, the proposal once again has been made to amend the PA School Code to eliminate the longstanding requirement that when schools lay off teachers they eliminate the positions of the least senior employees.

The proposals, found in Senate Bill 5 and House Bill 805, would permit districts that need to lay off teachers to select the worst performing teachers instead of the least senior, using annual performance ratings as the guide. According to reports the bills’ sponsors say that it too often is the case that good teachers are let go while poorer performing teachers are kept, and they note that Pennsylvania is one of only six states that still requires these decisions to be made on the basis of seniority only.

Again, the proposal is not new, but the bills do have bi-partisan support. They have been referred to the respective Education Committees in each chamber, and we will continue to monitor their progress.