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SHRM GovTech 5.2013

by Nancy Hammer  6/24/2013
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Today, the Supreme Court issued decisions in two cases of importance to SHRM and the HR profession: Vance v. Ball State University regarding supervisor liability and National Labor Relations Board v. Noel Canning regarding the validity of the Obama Administration’s recess appointments to the National Labor Relations Board (NLRB).

Vance v. Ball State University

In a 5-4 opinion in Vance v. Ball State University, the Court adopted a more narrow definition of “supervisor” ruling that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.”  In its opinion, the Court provided examples of employment actions to include “ hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”  The Court also specifically rejected the EEOC’s guidance which defines “supervisor” as anyone who has the “authority to direct the employee’s daily work activities,” remarking that “the vagueness of the EEOC’s standard would impede the resolution of the issue before trial….”

SHRM submitted an amicus brief supporting the employer in this case and encouraging the Court to clarify the definition of “supervisor” for purposes of an employer’s vicarious liability.  The Court previously ruled on this issue in two 1998 cases, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).  Since that time, the lower federal courts have been split on whether a “supervisor” is a person who has the authority to take specific workplace actions such as hiring, firing, and promoting or one who merely controls the an employee’s day-to-day tasks.  The Court’s decision is an important victory for employers in that it provides a brighter line for which employees are “supervisors” and, therefore, will be considered under Title VII as acting as agents of the employer.

The dissenting justices comment that “the ball is once again in Congress’ court to correct the error into which this Court has fallen….”  Whether Congress takes up the suggestion in the Court’s dissenting opinion remains to be seen.

National Labor Relations Board v. Noel Canning

Also today, the Court agreed to decide the case National Labor Relations Board v. Noel Canning, which will determine whether the President’s recess-appointment power may be exercised during recesses occurring within a session of the United States Senate or is limited to recesses that occur between sessions.  The case will also decide whether the President is able to fill vacancies existing during a recess or is limited to vacancies that come about for the first time during the recess.

At the lower court stage, the U.S. Court of Appeals for the District of Columbia ruled that the Obama Administration violated the Constitution when the President appointed three members to fill vacancies on the National Labor Relations Board (NLRB).  Prior to the Court’s decision to hear the case, the NLRB lost two federal appeals court cases on this issue.  These decisions call into question virtually every decision the Board has made since the recess appointments were announced.  SHRM, as part of a coalition of employers, associations and other organizations, known as Coalition for a Democratic Workplace, filed an amicus brief in support of certiorari to the Supreme Court.  The Court will hear this case next term which begins in October 2013.

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