A second piece of union-backed labor legislation likely to be introduced soon in the 111th Congress is the RESPECT Act. This Act is designed to reverse a line of U.S. Supreme Court and NLRB decisions that unions contend improperly expanded the statutory definition of “supervisor.”

Supervisors are not “employees” under the National Labor Relations Act, and they have no right to form or be organized by a union. Whether an individual qualifies as a “supervisor” is determined by the functions the individual performs. The term “supervisor” means:

“any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, award, or discipline other employees, or responsibility to direct them or to adjust their grievances, or to effectively recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

Individuals are not required to perform all of these functions to qualify as a supervisor; rather, the performance of one of the listed functions may be sufficient to satisfy the definition. As a result, supervisors include lower level management personnel who assign tasks or have responsibility to direct the work of others, but who may not serve in that supervisor role exclusively.

The RESPECT Act would narrow the NLRA’s definition of supervisor in two ways. First, the Act would remove the terms “assign” and “responsibility to direct” from the list of supervisor criteria. Second, the Act would require that individuals spend “a majority” of their working time performing supervisory functions.

If the RESPECT Act is passed, many “working supervisors” and other first-line members of management who today meet the criteria to be a supervisor would no longer qualify as a supervisor under the NLRA. In fact, many higher-level managers might not spend a majority of their working time performing the supervisory criteria that would remain if the RESPECT Act is passed. Narrowing the definition of supervisor would increase the number of employees who would have the right to form or be organized by a union and would make them eligible to become bargaining unit members along with the same employees they direct and to whom they assign work. Employers need to consider how passage of the RESPECT Act would impact front-line and working supervisors and the operational changes employers would need to implement to strengthen the evidence that supervising personnel meet the narrowed definition of supervisor.

EMPLOYERS: Visit Bricker & Eckler LLP’s EFCA Resource Center (http://www.bricker.com/legalservices/practice/employ/efca/) for news and updates on the Employee Free Choice Act and RESPECT Act legislation in the 111th U.S. Congress.