Wednesday, July 10, 2013

6th Circuit’s definition of “supervisor” under the NLRA has broad implications

In Vance v. Ball St. Univ., the U.S. Supreme Court held that for purposes of vicarious liability for harassment under Title VII, a supervisor must have taken a tangible employment action (i.e., hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a signifi­cant change in benefits) against the victim.

In footnote 7 to the opinion, the Court noted that the meaning of supervisor can vary depending on the federal statute being applied:

Petitioner argues that the NLRA’s definition supports her position in this case to the extent that it encompasses employees who have the ability to direct or assign work to subordinates.... The NLRA certainly appears to define “supervisor” in broad terms. The National Labor Relations Board (NLRB) and the lower courts, however, have consistently explained that supervisory authority is not trivial or insignificant: If the term “supervisor” is construed too broadly, then employees who are deemed to be supervisors will be denied rights that the NLRA was intended to protect.

Indeed, the NLRA applies a less strenuous definition than Title VII to determine supervisors status. The question is how much less strenuous.

In GGNSC Springfield LLC v. NLRB (7/2/13), the 6th Circuit concluded that charge nurses who have the authority to exercise their independent judgment to discipline subordinate employees are supervisors under the NLRA. In reaching this conclusion, the 6th Circuit rejected the Board’s argument that the power to discipline must involve an immediate suspension, termination, or other employment action:

The Board’s position on discipline is essentially that, to be considered “discipline,” the employee must suffer some immediate adverse employment action as a result of receiving an employee memorandum, such as suspension or termination, and because RN charge nurses cannot suspend or terminate a CNA’s employment unilaterally, they lack authority to discipline.... The term discipline must capture something less....

Generally, where an employer maintains a defined progressive discipline policy, and cited violations of company policy count toward the number of missteps permitted before termination, those with independent authority to issue the citations are supervisors....

The larger question is whether the RNs must consult with a superior and obtain approval before issuing a memorandum; if they must, their judgment is unlikely “independent.” The record shows that consultation and approval is neither required nor typical.

Thus, as a general rule, an employee who possesses sufficient authority to issue any disciplinary action (even warnings that could lead to later suspension or termination) without consulting with a superior, qualifies as a “supervisor” under the NLRA. The immediate decision need not result in a tangible employment action.

Make no mistake, this holding is significant. The NLRA does not cover or protect “supervisors.” Given the scope of the NLRA’s current agenda to further employees’ rights to engage in protected concerted activity, broadening the scope of who qualifies as a supervisor removes those employees from the Act’s protections. Thus, for example, a “supervisor” fired for complaining on Facebook about wages, benefits, or other goings-on in the workplace cannot claim that the termination violated the NLRA’s prohibitions against adverse actions for engaging in protected concerted activity.

In a political environment that is broadening the NLRB’s power, GGNSC Springfield’s broad interpretation of the definition of “supervisor” is a big win for employers.