On Sept. 29, National Labor Relations Board General Counsel Jennifer Abruzzo issued Memorandum GC 21-08 to all field offices asserting that student-athletes receiving scholarships at private colleges and universities are employees under the National Labor Relations Act.

While this memo may not affect most employers, Abruzzo made two important assertions in the memo that may affect certain employers within the construction industry:

1. Misclassifying employees and making them believe they aren’t entitled to the NLRA’s protections has a chilling effect on employees’ collective bargaining rights and is an independent violation of the NLRA. (This is contrary to the Trump-era NLRB decision in Velox Express.)
2. Collective action for social justice “directly concerns the terms and conditions of employment and is protected activity.” The NLRB currently has a pending action against Home Depot with respect to this issue.

Read more about Memorandum GC 21-08 in an analysis issued by ABC National’s general counsel, Littler Mendelson P.C.

In addition to this memo, Abruzzo also issued Memorandum GC 21-04, which outlines the priorities of the Office of the General Counsel. It also includes issues identified for review, such as general handbook policies and the 2017 Boeing decision, definitions and limitations around protected and concerted activity, union access to the workplace and employer property, and more.

ABC plans to monitor the NLRB closely as it moves forward on these issues and cases and will provide further updates in Newsline.