An employer generally is prohibited by the National Labor Relations Act from enforcing a rule prohibiting employees from discussing their wages and benefits with one another. However, individuals who are considered to be supervisors under the NLRA are not protected by the Act. In a case of first impression involving the supervisory status of attorneys in a small law firm, in The Martin Law Group, 10-CA-078395 (Div. Judges May 6, 2013), an administrative law judge has held that a law firm associate was a statutory supervisor, and thus, the employer did not violate the Act by terminating her for purportedly violating its otherwise unlawful rule prohibiting discussions of wages and benefits.

Section 2(11) of the NLRA sets forth several “indicia” of supervisory authority, the possession of any one of which makes an employee a “supervisor” under that law. Those indicia include the 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. Even if an employee does not possess any of the Section 2(11) authorities, but still “effectively recommends” one or more of them (in general, a recommendation to a superior that is essentially “rubber-stamped”), that employee also meets the definition of supervisor under the NLRA.

The administrative law judge found that the associate was a supervisor for a number of reasons. First, the judge noted the firm’s managing partner, without further investigation, ratified the associate’s recommendation to terminate an employee. The administrative law judge also explained the associate responsibly directed a case manager to assist the associate in handling the associate’s cases. The ALJ noted, however, that a small law firm — where all attorneys were lead counsel on their own cases — would differ from, for example, “a legal services agency employing a large number of staff attorneys who work under multiple layers of supervision.”

The ALJ ordered the employer to rescind the “no-discussion” rule. However, he let the associate’s termination stand, regardless of whether she actually violated the unlawful rule because she was a supervisor.

This decision underscores for employers the importance of ensuring they do not promulgate oral or written rules prohibiting employees from discussing their terms and conditions of employment. At the same time, the decision highlights the need to examine closely an individual’s actual status under the Act as an employee or supervisor, as titles sometimes may be misleading. Supervisory status suggests a potential defense in many cases, since individuals so classified generally are exempt from NLRA protection.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Daniel D. Schudroff Daniel D. Schudroff

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative…

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of Labor. Mr. Schudroff also advocates on behalf of employers at arbitration hearings and during collective bargaining negotiations. In addition, Mr. Schudroff regularly advises unionized and non-unionized clients with respect to a wide array of issues arising under the National Labor Relations Act and Labor Management Reporting and Disclosure Act. Mr. Schudroff also regularly counsels employers affected by the Fair Labor Standards Act, Railway Labor Act, Worker Adjustment and Retraining Notification Act, Uniformed Services Employment and Reemployment Rights Act, New York Labor Law, and Taylor Law.