Hunton Employment & Labor Perspectives

While “employees” have the right to form, join, or assist labor organizations under the National Labor Relations Act (NLRA), supervisors are not employees under the statute and do not have the same rights.  Under current case law, “supervisor” is interpreted broadly and employees who merely assign duties to other employees on a daily basis are statutory supervisors under the Act.  As expected and as we previewed in a prior posting, Senate Democrats recently announced new legislation that would narrow the definition of “supervisor” under the NLRA, increasing the number of workers eligible to join unions.

The bill is known as the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act, or RESPECT Act.  It was first introduced in 2006 when there were a series of NLRB decisions, collectively known as the Kentucky River cases, which expanded the definition of supervisory employees.  The current leading precedent on the definition of “supervisor” is Oakwood Healthcare, Inc., a 2006 decision in which the NLRB clarified the definition of “supervisor,” and defined previously ambiguous terms such as “assign” and “responsibly to direct” as used in Section 2(11) of the NLRA.  Using these new definitions, the NLRB found that permanent charge nurses were supervisors under the meaning of Section 2(11) and, therefore, not included within the protection of the Act.

The latest version of the RESPECT Act however would remove the terms “assign” and “responsibility to direct” from Section 2(11) and would also insert language requiring employees to spend a majority of their time on supervisory duties in order to be considered supervisors. 

To prepare for the passage of this bill, employers should review the job duties and responsibilities of lead persons at locations particularly at risk to union organizing efforts and ensure that these employees are spending the majority of their time on supervisory duties, and are doing more than merely assigning tasks (e.g., evaluating employees for raises, hiring subordinates, making effective recommendations for hire, and authorizing time off or overtime).  This will ensure that those individuals will be classified as supervisors in future organizing campaigns and elections even in the event the RESPECT Act becomes law.