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Who Is in Charge Around Here Anyway?

Many employees try to motivate their employees by giving them greater authority in the workplace. These employers often use a team approach and give the employees titles such as leads or team leaders. These efforts can pay real dividends in workforce management, but when they are reviewed under a 1930’s law called the National Labor Relations Act, determining whether these employees are also supervisors becomes an important but difficult issue.

While we all may want to complain about the current National Labor Relations Board, when the Fourth and Eighth Circuits of the United States Appeals Courts affirm the Board’s decisions on who is a supervisor, we should pay attention. The Fourth Circuit’s recent decision, Pac Tell Group Inc. v. NLRB, No. 15-1111 (4th Cir. Dec. 23, 2015), provides some helpful guidance on the Board’s current test for supervisor status. The basic elements of the Board’s supervisor test are whether the employee can exercise independent judgment, and has the authority to assign work, reward employees, discipline other employees, and direct other employees. As the Fourth Circuit points out in Pac Tell, it is important for employers to understand that should the question of supervisor status arise, the employer will likely have the burden of proving that these factors are met if the employer claims the employees they label as leads are supervisors. Another example of this issue is Securitas Critical Infrastructure Services, Inc. v. NLRB, No. 14-3102 , (8th Cir. Mar. 24, 2016), decided by the Eighth Circuit on March 24, where the primary issues were the independent judgment and responsibility to direct other employees’ elements of the Board’s supervisor test.

These cases illustrate that if the employer intends to create these in-between positions that are not solely front line employees but also not traditional supervisors, the employer needs to think about the elements of the position to make an upfront determination as to whether it will treat these employees as supervisors, which is important to several different aspects of labor relations law. For example, in the Pac Tell, the team leads decided to support a union organizing effort among the employees, but the employer claimed they were supervisors and their support tainted the election. In Securitas Critical, the issue was whether response team leaders in a security business could be members of a union bargaining unit.

An employer needs to understand what role leads and team leaders will play in labor matters, including union organization. If an employer does decide that its lead people will be treated as supervisors, it needs to build the case for that from starting point – the job description. Of course, the job description is just the start, as the employer needs to gather evidence that the employee/supervisor is actually taking the actions that meet the various elements of the Board’s supervisor test. Without this effort, the end result can be confusion as to who is really in charge at the workplace.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.