The SCC-SCJ, in its Decision Nº 786 issued on July 11, 2012 (Case: Jorge Félix Navas Bats v. Clover Internacional, C.A.), ratified the requirements for a worker to be characterized as an upper management employee.

According to the repeated doctrine of the SCC-SCJ, in order for a worker to be characterized as an upper management employee, he/she must meet any of the following three (3) requirements: 1) take part in the decisions and orientation of the company; or 2) be the representative of the employer vis-à-vis the workers or third parties; or 3) may substitute the employer in whole or in part.

In this regard, the SCC-SCJ stated that it is evident that due to the decisive intervention in the economic results of the company or in the achievement of its production objectives, upper management employees are so identified with the employer that they are even confused as such or substitute it in expressing its will.  For a worker to be characterized as an upper management employee, it must be clear that he/she takes part in the decision making process and not only enforces and carries out the acts required to comply with the orders, objectives and policies that have been previously determined by the employer and the true upper management employees.

When the upper management employee represents the employer vis-a-vis third parties or the other workers, it must be understood that this representation is the result of the opinions and decisions that he/she has provided or in which it has participated, and not that he/she is acting as a mere agent.  Indeed,  while the capacity as upper management employee implies a mandate of the employer (even if tacit), not all mandates imply that there is an underlying condition of upper management employee.

Finally, the characterization of an employee as an upper management employee will always depend on the actual nature of the services rendered, more than on the name agreed for the parties for the position held or that the employer unilaterally imposes.  This method results from applying the principles of non-waiver of the workers’ rights and the prevalence of reality over formal appearances.

Under the current Organic Labor and Workers' Law effective since May 7, 2012, upper management employees do not enjoy labor stability.  Thus it is very important for employers to determine which of their employees are likely to qualify as upper management employees and take adequate measures to be able to demonstrate such qualification should there be a need to do so.