A recent National Labor Relations Board (NLRB) ruling may have implications for the Affordable Care Act (ACA). The ruling, signed yesterday, held that football athletes at Northwestern "on scholarship" fall squarely into the definition of an employee for purposes of the NLRB.
The analysis, under Section 2(3) of the National Labor Relations Act provides in relevant part that the term ‘employee’ shall include any employee . . . ” The U.S. Supreme Court has held that in applying this broad definition of “employee” it is necessary to consider the "common law definition" of employee. NLRB v. Town & Country Electric, 516 U.S. 85, 94 (1995). Under this common law definition, an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment. Brown University, 342 NLRB 483, 490, fn. 27 (2004) (citing NLRB v. Town & Country Electric, 516 U.S. at 94).
The ruling stated that "as the record demonstrates, players receiving scholarships to perform football-related services for the employer under a contract for hire in return for compensation are subject to the employer’s control and are therefore employees under the common law standard."
The common law employee standard is very fact specific. What this ruling does not disclose, and may not realize, is that this common law standard is also used to determine who is your employee for purposes of the employer fair share requirements under 4980H and for new reporting requirements under 6056, both under the Affordable Care Act (ACA). It may also come into play for several employment related issues like workers compensation, local disability requirements, overtime etc. While this decision is likely not enforceable for IRS topics including the ACA, it shows how difficult the simple question of employer status can be. The question of who is the employer may continue to evolve.
To view the ruling, click here.
UPDATE 8/15: A recent ruling by the NLRB dismissed a petition by the players to unionize. This decision did NOT rule directly on the question of whether players are employees, instead it meant they declined to exert their jurisdiction in the case. To view this 8/17/2015 Board Decision, click here.
Failure to evaluate who your employee's are can have significant ramifications for the ACA and the rules can vary depending on the area of the law. For example, the DOL may rule that individuals are subject to overtime under the Fair Labor Standards Act (FLSA) which applies a different definition of employee. If you need help understanding these rules, please contact Kinney & Larson LLP.