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.