Tag Archives: supervisor

Virginia Sup Ct Holds Supervisor Can Be Personally Liable

A divided Virginia Supreme Court recently held 4-3 that a state law claim of wrongful discharge in violation of public policy may be pursued against an individual supervisor or manager who participated in the wrongful firing but was not the workers actual employer VanBuren v. Grubb, Va., No. 120348, 11/1/12.

Writing for the majority to answer a question certified by the Fourth Circuit, Justice Millette says the purpose of Virginias wrongful discharge tort is to deter firings in violation of public policy. That purpose “is best served if individual employees in a position of power are held personally liable for their tortious conduct.”

By contrast, the dissent would find “[o]nly an employer can breach that duty because only an employer has the ability to hire and fire.”

via Adjunct Law Prof Blog: Virginia Supremes Hold That Supervisor Can Be Personally Liable In Public Policy Exception Case.

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Who is a “supervisor” in a sexual harassment case? Supreme Court will decide

On November 26th, the Supreme Court will hear arguments in the case Vance v. Ball State University (11-556) coming from the 7th Circuit.  The issue in this case centers around the word “supervisor.”

In Faragher/Ellerth, as decided by the Supreme Court, the Court stated there is vicarious liability when the sexual harasser is the victim’s supervisor.  In other words, if the harasser is the supervisor, the employer is immediately liable unless two exceptions (described in Faragher/Ellerth) are met.

The issued posited to the Supreme Court is whether the supervisor liability rule is limited to those who have the authority to direct and oversee the victim’s daily work, or limited to those who have the power to hire, fire, demote, promote, transfer or discipline.

What’s so interesting about this case, you may ask?  The fact that courts all throughout the US are split on this definition.  Will this definition be broadly construed, narrowly construed?  If so, what would the consequences be of this decision.  Will sexual harassment claims be significantly reduced?  Will attorneys think of these claims as incredibly risky, and be less likely to pursue these claims?

As it is, civil rights have traditionally been limited.  The purpose of Title VII is to be broadly construed in order to provide civil rights protection.  The purpose of Title VII appears to be eaten away slowly.  It really does remind me of ADA before Congress enacted the ADAA.

In the ADA situation, Courts continuously narrowed the definitions and limited the extent to which a disability was covered by the Act.  Under the ADA, a disability was not covered if medical treatment reduced its impairment whereby the impairment was no longer significant.  When the ADAA was passed, Congress sternly pointed out to the extent the Courts had gone out of their way to prevent coverage under the Act for disabilities. In the ADAA, Congress specifically pointed to Supreme Court cases narrowing coverage under the Act.

Is it time for Congress to act once again?

via Vance v. Ball State University : SCOTUSblog.

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11th Circuit Issues Major NLRA Supervisor Decision

The Eleventh Circuit  held that the National Labor Relations Board lacked substantial evidence to support its conclusion that licensed practical nurses at a Florida nursing and long-term care facility were employees rather than supervisors. Lakeland Health Care Assocs. v. NLRB, ___F.3d___( 11th Cir., No. 11-12000, 10/2/12).

Finding NLRB improperly certified a United Food and Commercial Workers Union as the bargaining representative for a unit of LPN team leaders, the majority stated that the board “meticulously excluded or disregarded” evidence indicating the LPNs were supervisors outside the protection of the NLRA.

Dissenting, Judge William H. Pryor said the court’s own precedents precluded it from “reweighing the evidence” relied on by the board.

via Adjunct Law Prof Blog: 11th Circuit Issues Major NLRA Supervisor Decision.

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Cat’s Paw and Personal Liability

The Proactive Employer ran an interesting blog post on July 17, 2012 which reported on a case where a supervisor had personal liability under a Cat Paw type of case.

As you will recall, the Supremes in Staub v. Proctor Hospital, held that employers can be liable for discrimination based on the bias of an employee’s supervisors, even though the supervisor in question did not make the actual decision to terminate the employee.

Combine that holding with a 1981 case which permits personal liability and you get a case involving the Cat’s Paw and personal liability.  The case is Smith v. Brady from the 7th Circuit.

via Adjunct Law Prof Blog: Cat’s Paw and Personal Liability.

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Case to watch re: supervisor liability

Ball v. Vance is the name of the case.

Issue: Whether the “supervisor” liability rule established by Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

via Adjunct Law Prof Blog: Supremes Grant Cert In Case Involving Faragher Affirmative Defense.

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NLRB Issues Primer On Supervisory Status

Alternative Concepts, 358 NLRB No. 38 April 27, 2012, is an interesting case. The Board reaffirms the Oakwood line of cases and summarizes the applicable law as follows:

The Board set out the analytical framework for determiningsupervisory status in Oakwood Healthcare, 348 NLRB 686 2006, in which it defined the statutory terms“assign,” “responsibly to direct,” and “independentjudgment.” See also Croft Metals, 348 NLRB 717, 721–722 2006, and Golden Crest Healthcare Center, 348NLRB 727, 728, 731 2006. The burden of provingsupervisory status rests on the party asserting that suchstatus exists. Oakwood Healthcare, 348 NLRB at 694,citing Dean & Deluca New York, 338 NLRB 1046, 10472003. The party seeking to prove supervisory statusmust establish it by a preponderance of the evidence. Id.at 1047–1048; Springfield Terrace LTD, 355 NLRB 937,941 2010. Mere inferences or conclusionary statements,without detailed, specific evidence, are insufficientto establish supervisory authority. Golden CrestHealthcare Center, 348 NLRB at 731; Lynwood Manor,350 NLRB 489, 490 2007.

Like the other statutory indicia of supervisory status,the authority to assign and responsibly to direct otheremployees are not determinative of supervisory statusunless they are exercised using independent judgment.To exercise “independent judgment,” an individual mustact or effectively recommend action “free of the controlof others,” using a degree of discretion rising above “themerely routine or clerical.” Oakwood Healthcare, 348NLRB at 693.In Oakwood Healthcare, 348 NLRB at 689, the Boardexplained that assignment means designating an employeeto a place such as a location, department, orwing, appointing an employee to a time such as a shiftor overtime period, or giving an employee significantoverall duties as opposed to ad hoc instructions that theemployee perform a discrete task. There must be specificevidence that a putative supervisor “has the abilityto require that a certain action be taken; supervisory authorityis not established where the putative supervisorhas the authority merely to request that a certain actionbe taken.” Golden Crest Healthcare Center, 348 NLRBat 729.The Board in Oakwood Healthcare, 348 NLRB at 691,also interpreted the meaning of the phrase “responsiblyto direct”: “If a person on the shop floor has ‘men underhim,’ and if that person decides ‘what job shall be undertakennext or who shall do it,’ that person is a supervisor,provided that the direction is both ‘responsible’ and carriedout with independent judgment.” The Board furtherheld that, for direction to be “responsibl[e],” the persondirecting the performance of a task must be accountablefor its performance. To establish accountability for purposesof responsible direction, the party with the burdenof proof must show that “the employer delegated to theputative supervisor the authority to direct the work [ofothers] and the authority to take corrective action, if necessary,”and also that “there is a prospect of adverse consequencesfor the putative supervisor” if the putativesupervisor “does not take these steps.”12 Id. at 692. Evidenceof actual accountability must be present to proveresponsible direction. Alstyle Apparel, 351 NLRB 1287,1287 2007; Golden Crest Healthcare Center, 348 NLRB at 731.B.We find that neither the crew dispatchers nor line controllers are statutory supervisors.

via Adjunct Law Prof Blog: NLRB Issues Primer On Supervisory Status.

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