As introduced in Congress, The RESPECT Act would increase the number of employees who would have the right to form or be organized by a union by redefining the definition of “supervisor” under the National Labor Relations Act. Under present law, supervisors are not “employees” under the Act. Currently, “front line” or “working supervisors” – including “charge nurses” in health care – are individuals who act as supervisors by assigning tasks and have responsibility to direct the work of others, but who may not serve in that supervisor role exclusively. Under current law, such individuals can be supervisors who are exempt from union organizing and bargaining unit membership. The RESPECT Act would revise the definition of supervisor to remove the terms “assign” and “responsibility to direct” from the list of supervisor criteria, and require that individuals spend a majority of their working time performing supervisory functions1. As a result of these changes, many “working supervisors” and other first-line members of management would no longer qualify as a “supervisor.” This narrowing of the definition of supervisor would result in many individuals being eligible to become bargaining unit members along with the same employees they are charged with supervising. Employers need to consider how passage of the RESPECT Act would impact front line or working supervisors and the operational changes the employers must implement to strengthen the argument that its supervising employees meet the statutory definition of supervisor.
Along with the new year comes the expectation of strong support for labor law legislation by both the White House and Congress, so there is little doubt that some form of the EFCA and the RESPECT Act will be strongly considered as early legislation in President Obama’s first term. Employers must begin to prepare now for the anticipated changes.