Although law firms can be subject to the NLRB's
jurisdiction, there are not many reported decisions. An administrative
law judge recently issued a decision involving
a small law firm in Alabama that addressed the issue of whether a lawyer who
was not a partner could be a supervisor within the meaning of Section 2(11) of
the National Labor Relations Act. The issue involved the termination of an
associate who violated the firm rule prohibiting discussion among employees of
wages or benefits. One of the employer's defenses was that the associate
was a supervisor and therefore exempt from coverage of the Act.
The firm had one partner who made all the decisions concerning hiring, firing,
wages, and benefits. There were five associates, and four case managers
who assisted the associates. Ms. Rouse was the charging party and was the
only employee in the firm admitted in Mississippi. She therefore handled
all the cases in Mississippi. She was assisted by a case manager. While
there was a scheduling software used in the firm, it was not used for
Mississippi cases. The firm had a rule prohibiting the discussion of
wages and benefits by employees.
The administrative law judge found that the rule violated the Act.
The discussion of wages is a core Section right, and its prohibition
is unlawful absent a proof of a legitimate
and substantial business interest. With respect to the issue of
supervisory status, the judge stated that the key issue was how the attorneys
interacted with the case managers to fulfill the case
The judge found that Rouse had effectively recommended the hiring of a case
manager. The judge also found that Rouse had complained about a case
manager and requested the individual be terminated. The judge noted that
since the partner had not worked with the case manager and had no first hand
knowledge of performance, he relied on Rouse's judgment and fired the
The judge recognized that the firm was small and that each attorney is lead
counsel in his or her cases with the independent authority to decide
how to handle the cases. The attorneys are subject to adverse consequences if
the case manager does not properly perform the assigned task. The judge
noted that this fact differentiated the firm from legal services organizations
whose lawyers operate under multiple layers of supervision. Because Rouse
was a statutory supervisor, her termination did not violate the act.
Law firms and especially large law firms should be aware that associates may be
covered by the Act as employees. Law firms should consider whether and
the degree to which an associate's assessment of support staff is considered in
personnel decisions. It could be the critical difference if an issue of an
attorney's employee status becomes an issue. Law firms should also make
sure that firm policies are valid under the Board's expanded view of protected,
For additional Labor and Employment law
insights from John Holmquist, visit the Michigan
Employment Law Connection.
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