Is “Fair Pay to Play” Fair in College Sports? What California’s New Law Means for the Future of Amateur Athletics

On September 30, 2019, Governor Gavin Newsom signed California legislation—Senate Bill (SB) 206—that would permit college student athletes to benefit financially (for example, from endorsement deals) from their names, images, and likenesses while still in school. Governor Newsom signed the Fair Pay to Play Act, which Senator Nancy Skinner (D-Berkeley) and Senator Steven Bradford (D-Gardena) sponsored, with much fanfare, alongside a high-profile professional basketball player and several former college student athletes. The new law is scheduled to take effect in January 2023.

Student Loan Repayments or Retirement Savings? Maybe Both . . .

Recent statistics show that approximately 70 percent of college graduates will leave college with an average of at least $30,000 in student loan debt. Cumulatively, the national student loan debt is approximately $1.5 trillion. This burden is causing millennials to wait longer than previous generations to buy houses, start families, and save for retirement. Although student loan indebtedness is not an issue employers can solve alone, a few are finding ways to recruit and retain talent by offering a helping hand to employees dealing with massive debt burdens.

Play for Pay Won’t Go Away: The NCAA Is Again Defending Antitrust Litigation Over Limits on Payments to Student Athletes

The National Collegiate Athletic Association (NCAA) and 11 of its member conferences are on trial in In Re: National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (4:14-md-2541) to defend against antitrust challenges to current rules limiting the amount members may pay to student-athletes for the cost of attendance.

What I Did on My Summer Internship: A Primer for Employers on National Intern Day

July 26, 2018, is National Intern Day according to WayUp, the job site for college students and recent graduates. The organization’s campaign to acknowledge the role of interns in the workforce is intended to “encourage[] employers to celebrate, empower and recognize interns.” WayUp encourages employers to participate in the “holiday” by celebrating their interns (“anything from a mentorship session to a free pizza lunch or anything that feels right for your company”).

USCIS New Policy Shuts Down STEM OPT Training at Third Party Sites

The extension of the Optional Practical Training (OPT) program for international students with degrees in science, technology, engineering, and mathematics (STEM) allows eligible students to apply to extend their post-completion OPT authorization. Under the 2008 interim final rule, an F-1 student with a STEM degree from a U.S. institution of higher education could apply for an additional 17 months of OPT (per the 17-month STEM OPT extension), provided that the employer from which the student sought employment was enrolled in and remained in good standing in the E-Verify electronic employment eligibility verification program, as determined by U.S. Citizenship and Immigration Services (USCIS).

DOL Publishes New Fact Sheet Regarding Overtime Regulations for Higher Education Employees

On April 12, 2018, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued a new fact sheet concerning “the applicability of [the white collar] exemptions [of the Fair Labor Standards Act] to jobs that are common in higher education institutions.” In contrast to other recent DOL direction, Fact Sheet #17S largely echoes previous guidance from the Obama-era DOL.

DOL Gives Credit to Unpaid Student Interns After Getting Schooled by the Courts

Over the last few years, several federal courts—and, most recently last month, another appellate court—rejected the Obama administration’s mandatory six-prong test for whether someone can properly be classified as an unpaid intern under the Fair Labor Standards Act (FLSA). On January 5, 2018, the Trump administration issued an overhauled Fact Sheet #71, which formerly adopts a more flexible “primary beneficiary/economic reality” test.

The Department of Education Withdraws Obama-Era Title IX Guidance, Issues Interim Q&A

On Friday, September 22, 2017, when the Trump administration announced that it was rescinding Obama-era Title IX sexual assault guidance and issuing a new question and answer document while undertaking a formal review, most assumed it meant the previous Questions and Answers on Title IX and Sexual Violence issued by the U.S. Department of Education on April 29, 2014, had been rescinded.

Back to School for ERISA Fiduciary Claims: How to Prepare for This Trend in University Litigation

In the past 10 years, there have been an increasing number of lawsuits asserting Employee Retirement Income Security Act of 1974 (ERISA) fiduciary claims. These have been accompanied by an increased focus by the Department of Labor (DOL) on fiduciary matters.  This trend began with lawsuits against 401(k) plan fiduciaries alleging poor investment options and has evolved into lawsuits challenging not only the performance of investments offered under the plan, but also the fees associated with those investments. In addition, almost all of the more recent lawsuits examine not only the expenses associated with the investments, but all of the fees that the plan pays. They also allege that plan participants suffered losses to the value of their retirement savings.

The New Apprentice: President Trump’s EO Says “You’re Hired”

In keeping with his pledge to promote high-paying jobs, President Donald J. Trump signed an executive order, “Expanding Apprenticeships in America,” on June 15, 2017. With a goal to equip workers with the skills to fill existing and new jobs as well as jobs of the future in our rapidly changing economy, this executive order also acknowledges that our educational systems and our workforce development programs are not effective and in need of reform.

Return of Petitions Not Selected in the H-1B Lottery Triggers “Cap Gap” Considerations

United States Citizenship and Immigration Services (USCIS) announced on May 3, 2017, that data entry for the FY2018 H-1B visa lottery has been completed and that petitions not accepted under the lottery selection process will be returned. For cases for which an official receipt has not been issued, the returned petition is considered the official notice that the case was not selected in the lottery. This official notice from USCIS is critical for many employers with employees relying on “Cap Gap” for work authorization because the notice will determine when an impacted employee will lose his or her work authorization.

Third Circuit Finds Title IX Provides a Remedy for Sex Discrimination in Fully Funded Educational Institutions

The Third Circuit Court of Appeals has again created a circuit split by disagreeing with decisions from the Fifth and Seventh Circuit Courts of Appeals, which have held that Title VII of the Civil Rights Act of 1964 provides the exclusive remedy for employees alleging discrimination on the basis of sex in federally funded educational institutions.

The NLRB Throws a Flag on NCAA Division I Football and Explains Some Rules to Colleges and Universities

In an official memorandum entitled “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context,” the National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., explains several NLRB enforcement positions on National Labor Relations Act (NLRA) employee status in the university setting.  Most dramatically, the memorandum, which was issued on January 31, 2017 to all Regional Directors, Officers-in-Charge, and Resident Officers, declares National Collegiate Athletic Association (NCAA) football players are actually employees.

Seventh Circuit Rejects Student Athletes’ “Pay for Play” Suit

On December 5, 2016, the Seventh Circuit Court of Appeals issued its decision in Berger v. National Collegiate Athletic Association. The case was brought by former University of Pennsylvania (Penn) student athletes, Gillian Berger and Taylor Hennig, who filed suit against Penn, the National Collegiate Athletic Association (NCAA) and more than 120 other NCAA Division I member colleges and universities, claiming that as track and field student athletes, they were “employees” entitled to a minimum wage under the Fair Labor Standards Act (FLSA).