James Crowley Quoted by Law360 on Unionizing and White Collar Worker Status

For its article “Supervisor Status Fights Rise With Tech, Nonprofit Organizing,” Law360 quoted Akin labor & employment counsel James Crowley. The article looks at the increase in white collar workers organizing into unions, and the accompanying debate regarding their classification as employees, supervisors or managers, which could determine their ability to unionize.

Many unions and even the National Labor Relations Board (NLRB) lack experience organizing workers in sectors such as tech and nonprofit, said James, adding, “Unions have probably 100 years of history of determining bargaining units and crafting collective bargaining agreements that sit within the contours of a fairly large workforce in a way that can easily be standardized. In some of these sectors where they're now focusing their organizing energy, they have to contend with groups of employees who have functions that really are not so easy to standardize.”

He illustrated by noting, on the topic of classification as a supervisor as opposed to a manager, that many workers whose classification tends to be disputed may help formulate business strategies—which, the article notes, helps to define a “manager” under the National Labor Relations Act (NLRA)—and use what James calls “a great amount of judgment and creativity in executing even the very basic tasks and responsibilities of their jobs,” which might define them as “supervisors,” but may not have other workers reporting to them or be able to make hire/fire decisions, which are basic elements of the supervisor’s role, per the NLRA.

He also noted that, contrary to the case of workers such as tenured professors and physicians, current NLRB case law provides almost no explicit guidance on whether such workers are employees, supervisors or managers: “The lines as to which workers in the workforce of those industries are covered and which are not by the NLRA can sometimes be new terrain, for the employer, for the union and for the National Labor Relations Board.”

James said that the confusion is compounded by people who could be defined as “supervisor” or “manager” under the Fair Labor Standards Act not meeting the slightly different definitions in the NLRA.