The NLRB and the Law Firm as an Employer

 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 handling responsibilities.

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 individual.

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, concerted activity.

For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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