Are You an Employee?

Recently the National Labor Relations Board (NLRB) has taken steps to protect the rights of employees, including those without a union, when they act collectively for mutual aid or protection.  As we reported in past posts the Board has determined that non-union employees have the right to bring class and collective actions to improve working conditions, even if their employer forced them to sign agreements that establish individual arbitration as the only method of resolving disputes about working conditions:  NLRB Finds Class Action Litigation Protected Activity Under NLRA and Chipping Away at Employees’ Right to Bring Class Actions.  The Board has also found that employers violate the National Labor Relations Act (NLRA) when they retaliate against employees who engage in social media discussions of job conditions with co-workers:  Employers Are Not Free to “Dis-Like.”

Wonderful as these protections sound you cannot be protected by these and other Board decisions if you are not an employee as defined by the NLRA.  The Act provides no protection to employees whom it defines to be supervisors, even if these individuals are protected by the FLSA because they spend only ten percent of their time performing supervisory functions or have no power to reward or discipline the employees whom they “supervise.”  Conversely the NLRA explicitly protects professional employees even if they are exempt from the overtime requirements of the FLSA.

Under the NLRA individuals are supervisors, and therefore unprotected, if they have the authority to perform any one of twelve functions, even if performing these functions is a very minor part of their job duties.  These functions, listed in section 2(11) are authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action.”  As a result of the Supreme Court’s ruling on the interpretation of two of these functions – “assign” and “responsibly to direct” – in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001) and the NLRB’s subsequent decisions in a three related cases in 2006, Oakwood Healthcare Inc., 348 NLRB No. 37, Croft Metals, 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39, many individuals are statutorily classified as supervisors merely because they have the authority to assign particular tasks even though they have no power to hire, fire, reward or discipline.

Recently Senators Richard Blumenthal, D-Conn., Tom Harkin, D-Iowa, and Dick Durbin, D-Ill., introduced legislation to protect those individuals without real supervisory power.  The bill, entitled the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act, or RESPECT Act, would remove “assign” and “responsibly to direct,” the two supervisory functions that do not involve actual managerial authority over co-workers from section 2(11) of the NLRA.  In addition individuals who spend less than half their time performing supervisory functions would not be defined as supervisors.  Thus the RESPECT Act would extend the protections of the NLRA to workers who need the protection because they have no real supervisory power in the workplace.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.